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2012 DIGILAW 770 (PNJ)

Ram Avtar v. State of Haryana

2012-05-29

RAMESHWAR SINGH MALIK

body2012
JUDGMENT Mr. Rameshwar Singh Malik J.: (Oral) - Having been convicted for the offence under Section 138 of the Negotiable Instruments Act, 1881 (the Act for short) vide judgment of conviction dated 29.7.2010 and sentenced for six months RI, vide order of sentence dated 30.7.2010, passed by the learned JMIC, Hansi and appeal thereafter having been dismissed by the learned Additional Sessions Judge, Hisar, vide judgment dated 10.5.2012, the petitioner has approached this Court assailing the impugned judgments by way of instant criminal revision petition. 2. The facts are hardly in dispute. It is a matter of record that on the request made by the petitioner, respondent no.2-complainant society known as The Jammu and Kashmir Cooperative NATC, Society Ltd. Hansi, Distt. Hisar, advanced him a loan of Rs.20,000/- on 8.12.2003 and Rs.1,10,000/- on 8.10.2005,vide account no.404. The respondent no.2-complainant-society raised the demand on the petitioner, who issued cheque bearing no.117581 dated 17.10.2007, amounting to Rs.1,47,149 in favour of the respondent-complainantsociety. However, the cheque came to be dishonoured on account of insufficient funds vide memo dated 20.10.2007. Thereafter, a legal notice was issued by respondent no.2-complainant-society to the petitioner by way of registered post, which was duly served upon the petitioner. Since the petitioner did not make any payment inspite of receipt of the legal notice, the respondent no.2-complainantsociety set the criminal law into motion against the petitioner under Section 138 of the Act read with Section 420 of the Indian Penal Code (‘IPC’ sort short). The petitioner was summoned under Section 138 of the Act and pursuant thereto, he put in appearance. He pleaded not guilty to the charge and claimed to be tried. 3. On the basis of the evidence adduced by respondent no.2- complainant-society, the learned trial court held the petitioner guilty for the offence punishable under Section 138 of the Act. He was convicted vide judgement of conviction dated 29.7.2010 for the offence under Section 138 of the Act. Accordingly, he was sentenced to undergo rigorous imprisonment for a period of six months under Section 138 of the Act. He was also ordered to pay the cheque amount of Rs.1,47,149/- as compensation to respondent no.2- complainant-society within one month. In default of compensation, the petitioner was ordered to further undergo simple imprisonment for 3 months vide order of sentence dated 30.7.2010 passed by the learned JMIC, Hansi. 4. He was also ordered to pay the cheque amount of Rs.1,47,149/- as compensation to respondent no.2- complainant-society within one month. In default of compensation, the petitioner was ordered to further undergo simple imprisonment for 3 months vide order of sentence dated 30.7.2010 passed by the learned JMIC, Hansi. 4. Dissatisfied with the judgement of conviction and order of sentence, noted above, the petitioner filed his appeal before the learned Additional Sessions Judge, Hisar. Respondent no.2-complainant-society also filed appeal seeking enhancement in the sentence and also for compensation under Section 357 of the Code of Criminal Procedure (‘Cr.P.C.’ for short). Both the appeals were heard together and were dismissed vide common judgement dated 10.5.2012. 5. Feeling aggrieved against the above said impugned judgements of conviction and order of sentence, the petitioner invoked the revisional jurisdiction of this court under Section 401 Cr.P.C. by way of instant criminal revision. 6. Learned counsel for the petitioner submits that the entire outstanding amount has since been paid and pursuant thereto, ‘No Dues Certificate’ dated 15.5.2012 (Annexure-P-1) having been issued by respondent No. 2-complainant, the instant petition deserves to be accepted. 7. Notice of motion was issued. Learned counsel for respondent No. 2- complainant appeared and admitted the factum of deposit of the entire outstanding amount and issuance of ‘No Dues Certificate’ dated 15.5.2012 (Annexure-P-1). He further submits that respondent No. 2-complainant has got no objection in case the criminal proceedings against the petitioner are ordered to be quashed. 8. Learned counsel for the petitioner and respondent no.2-complainant society are ad-idem that pursuant to the mutual settlement arrived at between the parties, the petitioner has paid the entire outstanding amount including the interest. It is further admitted position between the litigating parties that the amount paid by the petitioner towards full and final settlement has been duly accepted by respondent no.2-complainant-society. Acting upon the mutual settlement and after accepting the amount of Rs.1,71,000/- vide receipt dated 15.5.2012, in loan account no.404 paid by the petitioner, respondent no.2- complainant-society has also issued the No Dues Certificate dated 15.5.2012, which is available on the record of this case as Annexure P-1. 9. In view of the above, both the learned counsel seek to invoke the provisions of Section 147 of the Act and pray for compounding the offence under Section 138 of the Act. 9. In view of the above, both the learned counsel seek to invoke the provisions of Section 147 of the Act and pray for compounding the offence under Section 138 of the Act. Both the learned counsel for the litigating parties further submitted that since the parties have amicably settled the matter and respondent no.2-complainant-society has got no objection in quashing of the criminal proceedings, the petitioner may be acquitted of the charge under Section 138 of the Act, setting aside the impugned judgements of conviction and order of sentence allowing this revision petition. 10. Having heard the learned counsel for the parties and after going through the records of the case, this Court is of the considered opinion that it is just and expedient to accept the present criminal revision petition. I say so because the petitioner has admittedly paid the entire outstanding amount, which has been duly accepted by respondent No. 2-complainant. The complainant has also issued ‘No Dues Certificate’ dated 15.5.2012 (Annexure-P-1), which also goes to show that nothing remains outstanding against the petitioner. 11. Learned counsel for respondent no.2-complainant-society has admitted that pursuant to the amicable settlement arrived at between the parties, the petitioner has paid the amount of Rs.1,71,000/- vide receipt dated 15.5.2012 towards full and final settlement of the dues against him and the same has been duly accepted by respondent no.2-complainant-society. He further submits that since nothing remains due against the petitioner, No Dues Certificate dated 15.5.2012 (Annexure P-1) had been issued in favour of the petitioner by respondent no.2-complainant-society. 12. Having considered the contentions raised by the learned counsel for the litigating parties in view of the above said admitted position on record, this court is of the considered view that the prayer made on behalf of the petitioner, which remained unopposed, rather supported by respondent no.2-complainant-society also, deserves to be accepted in the peculiar fact situation of the present case. 13. The view taken by this Court finds support from the judgments of the Hon’ble Supreme Court in Vinay Devanna Nayak Versus Ryot Sewa Sahakari Bank Ltd. [2007(5) Law Herald (SC) 3843] : (2008) 2 SCC 305 and Damodar S. Prabhu Versus Sayed Babalal H. [2010(3) Law Herald (SC) 1874] : 2010 (5) SCC 663 . 13. The view taken by this Court finds support from the judgments of the Hon’ble Supreme Court in Vinay Devanna Nayak Versus Ryot Sewa Sahakari Bank Ltd. [2007(5) Law Herald (SC) 3843] : (2008) 2 SCC 305 and Damodar S. Prabhu Versus Sayed Babalal H. [2010(3) Law Herald (SC) 1874] : 2010 (5) SCC 663 . Since the present case is close to the facts in Vinay Devanna Nayak’s case (supra), the relevant observations made by the Hon’ble Supreme Court in paras 16 to 19 thereof, which can be gainfully followed in the present case, read as under :- “16. Section 138 of the Act was inserted by the Banking, Public Financial Institutions and Negotiable Instruments Law (Amendment) Act, 1988 (Act 66 of 1988) to regulate financial promises in growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters. The incorporation of the provision is designed to safeguard the faith of the creditor in the drawer of the cheque, which is essential to the economic life of a developing country like India. The provision has been introduced with a view to curb cases of issuing cheques indiscriminately by making stringent provisions and safeguarding interest of creditors. 17. As observed by this Court in Electronics Trade & Technology Development Corpn. Ltd. Vs. Indian Technologists & Engineers (Electronics) (P) Ltd., the object of bringing Section 138 in the statute book is to inculcate faith in the efficacy of banking operations and credibility in transacting business on negotiable instruments. The provision is intended to prevent dishonesty on the part of the drawer of negotiable instruments in issuing cheques without sufficient funds or with a view to inducing the payee or holder in due course to act upon it. It thus seeks to promote the efficacy of bank operations and ensures credibility in transacting business through cheques. In such matters, therefore, normally compounding of offences should not be denied. Presumably, Parliament also realised this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). The said section reads thus : “147. Offences to be compoundable – Notwithstanding anything contained in the Code of Criminal Procedure, 1972 (2 of 1974),every offence punishable under this Act shall be compoundable.” 18. Presumably, Parliament also realised this aspect and inserted Section 147 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act 55 of 2002). The said section reads thus : “147. Offences to be compoundable – Notwithstanding anything contained in the Code of Criminal Procedure, 1972 (2 of 1974),every offence punishable under this Act shall be compoundable.” 18. Taking into consideration even the said provision (Section 147) and the primary object underlying Section 138, in our judgement, there is no reason to refuse compromise between the parties. We, therefore, dispose of the appeal on the basis of the settlement arrived at between the appellant and the respondent. 19. For the foregoing reasons the appeal deserves to be allowed and is accordingly allowed by holding that since the matter has been compromised between the parties and the amount of Rs.45,000 has been paid by the appellant towards full and final settlement to the respondent Bank towards its dues, the appellant is entitled to acquittal. The order of conviction and sentence recorded by all courts is set aside and he is acquitted of the charge levelled against him.” 14. Further, in the judgment of Mrs.Shakuntala Sawhney Vs. Mrs. Kaushalya Sawhney and others, (1980) 1 SCC 63 , Hon’ble Krishna Iyer, J observed about the essence of compromise in the following words :- “The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship of reunion.” 15. Reverting to the facts of the present case, it has been found that the petitioner has paid the entire outstanding amount, which has been accepted by respondent No. 2-complainant. Consequently, respondent No. 2-complainant has issued ‘No Dues Certificate’ dated 15.5.2012 (Annexure-P-1), thereby leaving no room for doubt that nothing remains due against the petitioner. In this view of the matter, the conviction and sentence of the petitioner would result in abuse of process of law. 16. In the totality of the facts and circumstances of the present case, noted above, coupled with the reasons aforementioned, the instant criminal revision petition is allowed. The impugned judgment and order of sentence dated 29.7.2010 and 30.7.2010 respectively, passed by the learned JMIC, Hansi and the impugned judgment dated 10.5.2012, passed by the learned Additional Sessions Judge, Hisar are ordered to be set aside. The impugned judgment and order of sentence dated 29.7.2010 and 30.7.2010 respectively, passed by the learned JMIC, Hansi and the impugned judgment dated 10.5.2012, passed by the learned Additional Sessions Judge, Hisar are ordered to be set aside. The petitioner is acquitted of the charge under Section 138 of the Act and shall be set at liberty forthwith, if he is not required in any other case. 17. Resultantly, the instant criminal revision petition stands allowed.