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2016 DIGILAW 2129 (HP)

Suresh Kumar v. H. P. Financial Corporation

2016-09-30

SANDEEP SHARMA

body2016
JUDGMENT Sandeep Sharma, J. - Present Criminal Revision Petition filed under Section 397 of the Code of Criminal Procedure is directed against the judgment dated 5.12.2014, passed by learned Additional Sessions Judge-II Shimla, in Criminal Appeal No. RBT- 96-S/10 of 2013/09, affirming the judgment of conviction and sentence dated 4.5.2009, passed by learned Chief Judicial Magistrate, Shimla in Criminal complaint No. 37/3 of 2006, whereby learned trial Court while holding petitioner-accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and Whether reporters of the local papers may be allowed to see the judgment? sentenced him to undergo simple imprisonment for three months and to pay compensation of Rs. 1, 60,000/-. 2. Briefly stated facts, as emerged from the record are that H.P. Financial Corporation( hereinafter referred to as the 'Complainant'), filed complaint under Section 138 of the Negotiable Instruments Act, 1881( hereinafter referred to as the 'Act'), before the learned Chief Judicial Magistrate, Shimla, H.P, stating therein that petitioner( hereinafter referred to as the 'Accused') who is sole proprietor of M/s S.L. Industries, Village Kandiser, P.O. Fagu, Tehsil Theog, District Shimla, H.P had taken a term loan of Rs. 6.08 lacs and soft loan of Rs. 2.34 lacs from the corporation. In order to secure repayment of loan and interest, accused being proprietor of the aforesaid industry, executed loan agreement dated 19.1.1998 and agreement of hypothecation dated 19.1.1998 and also created equitable mortgage by depositing the title deed of the property of the firm in favour of the Complainant-corporation. Complainant, further alleged by way of complaint that in spite of maximum accommodation provided by the complainant-Corporation, accused committed default in the repayment of loan amount as per the terms and conditions and loan amount has accumulated to Rs. 19,48,402/- as term loan and Rs. 2,27,086/- as soft loan. Accused being proprietor of the aforesaid industry, issued cheque bearing No.672419/-, dated 1.5.2006 amouting to Rs. 19,48,402/- as term loan and Rs. 2,27,086/- as soft loan. Accused being proprietor of the aforesaid industry, issued cheque bearing No.672419/-, dated 1.5.2006 amouting to Rs. 80,000/- drawn on ICICI Bank, the Mall Shimla in favour of the Corporation towards part payment of the outstanding loan but fact remains that aforesaid cheque issued by the present petitioner-accused was returned unpaid by the ICICI Bank with the remarks " insufficient funds" along with refusal memo Ex.CW1/D. On the receipt of aforesaid intimation, complainant issued registered notice Ex.CW1/F to the accused on 19.5.2006 but fact remains that he failed to deposit the amount in terms of the notice and as such, complainant-corporation was compelled to institute proceedings under Section 138 of the Act, in the competent Court of law. 3. Learned trial Court on the basis of the evidence adduced on record by the respective parties, came to the conclusion that the present petitioner-accused is guilty of having committed the offence punishable under Section 138 of the Act and accordingly convicted and sentenced him to undergo simple imprisonment for six months and to pay compensation of Rs. 1,60,000/-, to the complainant. 4. Feeling aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by learned trial Court, present petitioner-accused filed an appeal under Section 374 of the Code of Criminal Procedure in the Court of learned Additional Sessions Judge-II Shimla, which came to be registered Cr. Appeal No. RBT96-S/10 of 2013/09. Learned first appellate Court while dismissing the appeal preferred on behalf of the present petitioner-accused, modified and reduced the compensation awarded by the trial Court below from Rs. 1,60,000/- to Rs. 1,00,000/-.Hence, the present criminal revision petition before this Court. 5. This Court vide order dated 13.2.2015, while admitting the present petition for hearing also suspended the sentence, as awarded by the Courts below subject to the petitioner-accused furnishing personal bonds to the satisfaction of learned trial Court. 6. Today, during the proceedings of the case, learned counsel representing the petitioner, on the instructions, having been received by him from his client, stated that the present matter can be ordered to be compounded in terms of the law laid down by the Hon'ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H.(2015) 5 SCC 663, because petitioner accused has already deposited the entire amount of compensation, as ordered by the learned Court below. 7. Mr. 7. Mr. D.N. Sharma, learned counsel representing the petitioner, placed on record receipts (Annexure-A &B), issued by Himachal Pradesh Financial Corporation, which clearly suggest that an amount of Rs. 60,000/- stands deposited towards the loan account, whereas an amount of Rs. 5000/- has been deposited on account of legal expenses. Mr. Sharma, also stated that petitioner-accused has already deposited an amount of Rs. 40,000/- with the learned trial Court, which can also be released in favour of the complainant-corporation. 8. Mr. Ajay Sharma, learned counsel representing the respondent Corporation, after perusing the receipts as well as on the instructions imparted to him by Sh. Hari Singh Thakur, Recovery Executive H.P.F.C, Shimla-1, stated at the Bar that he has no objection in case the offence is compounded in terms of the law laid down by the Hon'ble Apex Court. In view of the aforesaid statements having been made by learned counsel for the parties, this Court deems it fit to compound the offence allegedly committed by the present petitioner-accused. At this stage, it may be noticed that learned trial Court below while holding the petitioner guilty for the offence punishable under Section 138 of the Act, ordered for payment of compensation to the tune of Rs. 1,60,000/- but same was modified by learned first appellate Court to Rs. 1,00,000/-. 9. Consequently, in view of the aforesaid discussion made herein above, matter is ordered to be compounded and judgments passed by learned Courts below are quashed and set-aside. The petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act subject to depositing of 15% of the cheque amount with the H.P. State Legal Services Authority, within a period of six weeks. Needless to say, respondent-corporation is at liberty to get the amount released in his favour from the learned Court below by moving appropriate application in accordance with law. The petition is disposed of along with pending applications, if any.