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2012 DIGILAW 1194 (PNJ)

Shekhar Mehta v. State of Haryana

2012-09-13

RAMESHWAR SINGH MALIK

body2012
JUDGMENT RAMESHWAR SINGH MALIK, J. The instant criminal revision petition is directed against the judgment dated 27.7.2012 passed by the learned Sessions Judge, Fatehabad, thereby dismissing the appeal of the petitioner against the judgment of conviction dated 30.8.2010 and order of sentence dated 31.8.2010, passed by the learned Additional Chief Judicial Magistrate, Fatehabad, for the offence under Section 138 of the Negotiable Instruments Act, 1881 (for short `the NI Act'). Shorn of detailed background of the case, it would suffice to refer to the basic facts necessary for disposal of the instant criminal revision petition. Five cheques, issued by the petitioner in favour of the respondent-complainant on different dates and for different amount, came to be dishonoured. The total amount was Rs.6.75 lacs. The respondent No.2-complainant had to approach the Court by way of her complaint No.141-II under Section 138 of the NI Act. During the course of trial, the parties led their respective evidence. After hearing the parties and perusal of the record, the learned trial Court recorded the judgment of conviction dated 31.8.2010. Consequently, the learned trial Court by way of its order of sentence dated 31.8.2010, awarded the sentence to the petitioner to undergo simple imprisonment for a period of two years and also to pay a fine of Rs.2,000/- for the commission of offence punishable under Section 138 of the NI Act. In default of payment of fine, the petitioner was ordered to further undergo simple imprisonment for 10 days. Dissatisfied with the above-said judgment of conviction and order of sentence, petitioner filed his appeal before the learned Sessions Judge, Fatehabad, which came to be dismissed vide impugned judgment dated 27.7.2012. Feeling aggrieved against the above-said judgments of conviction and order of sentence, petitioner has approached this Court by way of instant criminal revision petition. That is how, this Court is seized of the matter. During the pendency of this petition, parties arrived at a compromise by way of an out of court settlement dated 17.8.2012. The compromise and the affidavit of respondent No.2-complainant, in respect thereof, were placed on record by way of CRM No.49322 of 2012. Learned counsel for the respondent-complainant fairly states that the parties have arrived at an out of court settlement by way of compromise, Annexure P-1 and the affidavit of respondent No.2-complainant is Annexure P-2. The compromise and the affidavit of respondent No.2-complainant, in respect thereof, were placed on record by way of CRM No.49322 of 2012. Learned counsel for the respondent-complainant fairly states that the parties have arrived at an out of court settlement by way of compromise, Annexure P-1 and the affidavit of respondent No.2-complainant is Annexure P-2. Learned counsel for the petitioner pointed out that in view of the amicable settlement between the parties, the offence under Section 138 of the NI Act is compoundable in view of the provisions contained in Section 147 of the NI Act. He further submits that the statement of the complainant by way of her sworn affidavit, would amount to her withdrawl from the prosecution, in view of the provisions contained in Section 321 Cr.P.C. Thus, learned counsel for the petitioner concluded by submitting that in view of the changed circumstances and keeping in view the compromise, Annexure P-1 duly supported by an affidavit of the complainant vide Annexure P-2, petitioner was entitled for acquittal. To buttress his contention, learned counsel for the petitioner relies upon the judgment of Hon'ble the Supreme Court in R.Raju v. K.Sivaswamy 2012 (2) RCR (Crl.) 238 and two judgments of this Court in Ritesh Gupta vs. State of Punjab and another 2009(3) RCR (Crl.) 61 and Natvar Lal v. State of Punjab and another 2011(2) RCR (Crl.) 440. I have heard the learned counsel for the parties and with and their able assistance, have gone through the record of the present case. Having given my thoughtful consideration to the contentions raised and in view of the peculiar fact situation of the present case, this Court is of the considered opinion that it is just and expedient to allow the parties to compound the offence under Section 138 of the NI Act in view of the provisions of Section 147 of NI Act I say so because during the pendency of this petition, parties have arrived at an out of court settlement by way of compromise, Annexure P-1. Further, complainant appeared in the Court and filed her duly sworn affidavit, Annexure P-2, stating therein that since, she has received all the amount including the litigation expenses and fine alongwith interest, she intends to withdraw the pending complaint. Further, complainant appeared in the Court and filed her duly sworn affidavit, Annexure P-2, stating therein that since, she has received all the amount including the litigation expenses and fine alongwith interest, she intends to withdraw the pending complaint. In this view of the matter, the statement of the complainant-respondent No.2 by way of her above-said affidavit, Annexure P-2, would amount to her withdrawl from the prosecution under Section 321 Cr.P.C. and the petitioner would be entitled for acquittal. In similar circumstances, Hon'ble the Supreme Court in R.Raju's case (supra), observed as under:- “3. During the pendency of this appeal, the appellant had entered into a compromise with the complainant and the complainant has appeared through the learned counsel, who stated that the entire money has been received by the complainant and, therefore, he has no objection if the conviction already recorded under Section 138 of the Act is set aside. 4. Since the parties have arrived at a settlement and prayed for the compounding of the offence as contemplated by Section 147 of the Act, it is not necessary for us to notice the facts leading up to institution of proceedings before this Court. 5. Since the parties have settled their disputes, we allow the parties to compound the offence, set aside the judgment of the Courts below and acquit the appellant of the charges against him.” In an identical situation, this Court in Ritesh Gupta's case CRR No.2247 of 2012 (O&M) 5 (supra) opined as under:- “3. Today when the case has been taken up for hearing, learned counsel for the petitioner as well as learned counsel for respondent No.2 have submitted that in view of the payment made on 24th April, 2009, they may be allowed to compound the offence. Reliance has been placed on judgments reported as G. Sivarajan Vs. Little Flower Kuries and Enterprises Ltd. & Anr. 2005 (2) DCR 408 and Rameshbhai Somabhai Patel Vs. Dineshbhai Achalanand Rathi and another, 2005 Crl. L.J. 431 to contend that offence under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') is compoundable even at the revisional stage in view of provision contained in Section 147 of the Act. 4. I have heard learned counsel for the parties and considered their submissions. 5. In judgment of the Apex Court reported as O.P. Dholakia Vs. 4. I have heard learned counsel for the parties and considered their submissions. 5. In judgment of the Apex Court reported as O.P. Dholakia Vs. State of Haryana and another, (2000) 1 Supreme Court Cases 762, the Apex Court was pleased to allow the accused and the complainant to compound an offence under Section 138 of the Act despite conviction and sentence having been upheld by three Forums. In view of the compromise, the conviction and sentence under Section 138 of the Act was annulled. 6. After the judgment in O.P. Dholakia's case (supra), Section 147 was inserted in the Act, which reads thus: “147. Offence to be compoundable.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.” 7. It is thus clear that a specific provision is now incorporated in the statute permitting the parties to compound every offence punishable under the Act, notwithstanding anything contained in the Code of Criminal Procedure. This provision leaves no room for doubt that the complainant can make a statement before the court that he is ready to compound the offence. The effect of such a statement would be akin to that of withdrawal from prosecution. Thus in case of compounding of offence as envisaged by Section 147 of the Act, the conviction and sentence of accused would have to be set-aside. 8. In the judgment relied upon by the counsel for the parties in G.Sivarajan's case (supra), the Apex Court held as under:- “3. The respondent-complainant who is represented through his counsel has filed an affidavit stating that his claim has since been settled and he has no objection if the matter is compounded under Section 147 of the Negotiable Instruments Act, 1881. Having perused the judgments and the contents of the affidavit filed by the complainant, we are satisfied that this is a case which could be compounded. The sentence imposed by the two Courts below is set aside. We permit the parties to compound the offence under Section 147 of the Negotiable Instruments Act, 1881.” 9. The judgment of Gujarat High Court in Rameshbhai Somabhai Patel's case (supra) is on the similar lines. 10. Under the circumstances, the plea of the parties is accepted. The sentence imposed by the two Courts below is set aside. We permit the parties to compound the offence under Section 147 of the Negotiable Instruments Act, 1881.” 9. The judgment of Gujarat High Court in Rameshbhai Somabhai Patel's case (supra) is on the similar lines. 10. Under the circumstances, the plea of the parties is accepted. The conviction and sentence imposed upon the petitioner for offence punishable under Section 138 of the Act is hereby set-aside and the petitioner is acquitted of the offence for which he was convicted and sentenced.” The view taken by this Court in Ritesh Gupta's case (supra) came to be reiterated in Natvar Lal's case (supra), wherein this Court observed as under:- “4. Learned counsel for the respondent/complainant affirms the assertion made by counsel for the petitioner regarding compromise. On the last date of hearing i.e. December 07, 2010, he had already filed an affidavit of the complainant in this regard which was taken on record as Mark 'A'. 5. In view of the fact that offence under Section 138 of the Act is compoundable under Section 147 of the Act, the statement made by the complainant would amount to withdrawal from prosecution as envisaged by Section 321 Cr.P.C. In such circumstances and in view of the judgment rendered by this court in Ritesh Gupta v. State of Punjab and another, 2009 (3) R.C.R. (Criminal) 61, the plea of the parties is accepted. The conviction and sentence imposed upon the petitioner for offence punishable under Section 138 of the Act is hereby set-aside and the petitioner is acquitted of the offence for which he was convicted and sentenced.” Reverting back to the facts of the present case, it is matter of record that during the pendency of this revision petition, parties arrived at an out of court settlement by way of compromise, Annexure P-1. Further, the complainant-respondent No.2 filed her specific affidavit, Annexure P-2. Further, the complainant-respondent No.2 filed her specific affidavit, Annexure P-2. In this view of the matter, the offence under Section 138 of the NI Act being a compoundable offence, as per the provisions under Section 147 of the NI Act, this Court has no hesitation to conclude that the statement made by the respondent-complainant by way of her affidavit, Annexure P-2, would amount to her withdrawl from the prosecution, in view of the provisions of Section 321 Cr.P.C. Considering the totality of facts and circumstances of the case noted above, coupled with the reasons aforementioned, it is unhesitatingly held that the parties are entitled to compound the offence in the given fact situation of the present case. Thus, the parties are allowed to compound the offence. Consequently, the impugned judgments of the courts below are set aside and the petitioner is acquitted of the charge framed against him. The petitioner is directed to be set at liberty forthwith, if he is not required in any other case. Resultantly the instant criminal revision petition stands allowed.