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2012 DIGILAW 1490 (PNJ)

Sanjay Kumar v. Manmohan Singh

2012-10-15

PARAMJEET SINGH

body2012
JUDGMENT Mr. Paramjeet Singh, J. (Oral) - Present criminal revision has been preferred by the petitioners against judgment dated 19.03.2012 passed by learned Additional Sessions Judge, Gurgaon, thereby dismissing the appeal filed by the petitioner against the judgment of conviction dated 09.02.2011 and order of sentence dated 11.02.2011 passed by learned Judicial Magistrate Ist Class, Gurgaon, vide which the petitioner has been convicted for an offence punishable under Section 138 of the Negotiable Instruments Act and sentenced to undergo simple imprisonment for a period of six months and directed to pay compensation under Section 357(3) Cr.P.C. amounting to Rs.4,00,000/- i.e. the cheque amount, to the complainant within two months from the date of the judgment. 2. Brief facts of the case are that criminal complaint was filed by the respondent-complainant against the petitioner under Section 138 of the Negotiable Instruments Act with the averments that the the complainant lent to the accused-petitioner a sum of Rs. 4,00,000/- in cash on 04.06.2002 and in order to discharge liability to pay back amount of Rs. 4,00,000/-, the accused issued cheque bearing No. 632165 dated 4.12.2002. Said cheque on presentation for encashment was dishonoured with the remarks “insufficient funds”. Thereafter, the complainant served notice dated 20.12.2002 upon the accused, but the accused failed to comply with the notice. After recording preliminary evidence, the accusedpetitioner was summoned under Section 138 of the Negotiable Instruments Act. Finding a prima facie case against the petitioner, notice of accusation was served upon the accused-petitioner to which the accused-petitioner pleaded not guilty and claimed trial. 3. The complainant, in order to prove his case, examined Balram, Officer of Canara Bank, Gurgaon as PW1, Sh. Vijender Singh Yadav, Officer Bank of India, Gurgaon as PW2, Narender Singh, Clerk with sh.JK Dang, Advocate as PW3 and himself as PW4 and closed his evidence. No evidence in defence was led by the accused. 4. The learned Trial Court, after appreciation of the evidence, convicted and sentenced the petitioner as aforesaid vide judgment dated 09.02.2011 and order dated 11.02.2011. Thereafter, the petitioner preferred an appeal, which was dismissed by the learned Additional Sessions Judge, Gurgaon, vide judgment dated 19.03.2012. 5. I have heard the learned counsel for the parties and perused the record. 6. Learned counsel for the parties state that the dispute has been settled amicably. 7. Thereafter, the petitioner preferred an appeal, which was dismissed by the learned Additional Sessions Judge, Gurgaon, vide judgment dated 19.03.2012. 5. I have heard the learned counsel for the parties and perused the record. 6. Learned counsel for the parties state that the dispute has been settled amicably. 7. On 28.03.2012, this Court passed the following order:- “Criminal Revision No.959 of 2012 Learned counsel for the parties are ad idem that the parties have entered into an out of Court settlement by way of compromise, which is contained in the form of affidavit of the respondent (Annexure P-1). Notice of motion. At this stage, Mr. C.S. Rana, Advocate, accepts notice on behalf of the respondent and submits that the parties have arrived at the settlement vide Annexure P-1, which is a genuine one. He further submits that respondent has received an amount of Rs.1,80,000/- towards full and final payment and nothing remains due against the petitioner. Learned counsel for the respondent also submits that he has got the instructions from the respondent to state that the respondent has no objection in case the present petition is allowed and the petitioner is acquitted of the charge framed against him. To be listed for further consideration on 7.5.2012. In the meantime, the parties are directed to appear before the learned Chief Judicial Magistrate, Gurgaon on 16.4.2012 for getting their statements recorded. The learned Chief Judicial Magistrate, Gurgaon shall record the statements either on 16.4.2012 or on any other date convenient to the court. Thereafter, the learned Chief Judicial Magistrate shall send the report to this Court, before the next date of hearing, about the genuineness of the compromise along with the copies of the statements of the parties.” 8. In pursuance of order dated 28.03.2012, the learned Chief Judicial Magistrate, Gurgaon, has submitted his report dated 24.04.2012, which indicates that parties appeared before him and their respective statements with regard to validity of compromise have been recorded. As per the statements, the complainant has compromised the matter with the petitioner. It is further mentioned in the report that the statements have been made by the parties without any fear or pressure. Now, no dispute is pending between the parties. 9. The Hon’ble Apex Court in the matter of Damodar S. Prabhu versus Sayed Bablal H. reported in [2010(3) Law Herald (SC) 1874] : 2010(2) R.C.R. (Criminal) 851, has held as under:- “15. Now, no dispute is pending between the parties. 9. The Hon’ble Apex Court in the matter of Damodar S. Prabhu versus Sayed Bablal H. reported in [2010(3) Law Herald (SC) 1874] : 2010(2) R.C.R. (Criminal) 851, has held as under:- “15. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:- THE GUIDELINES (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate’s Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority.” 10. Consequently, in view of affidavit (Annexure P/1) and keeping in view the law laid down by the Hon’ble Apex Court in the matter of Damodar S. Prabhu (supra), present revision petition is disposed of. Impugned judgments and order of sentence are modified and the sentence of the petitioner is reduced to already undergone, subject to deposit of 15% of the settled amount of Rs. 1,80,000/- i.e. Rs.27,000/- by the petitioner/accused with the State Legal Services Authority, Haryana. It is, however, directed that the petitioner will be released only on deposit the aforesaid amount and the sentence shall be treated to be reduced upto the date of such actual release. It is made clear that in case the amount as directed is not deposited/paid, the order of conviction and sentence shall stand affirmed.