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2016 DIGILAW 2254 (HP)

DAMODAR DASS v. KASHMIR SINGH

2016-10-21

TARLOK SINGH CHAUHAN

body2016
JUDGMENT : Tarlok Singh Chauhan, J. 1. By way of present appeal, the appellant/complainant seeks modification of the judgment dated 26.06.2015 passed by the learned Additional Chief Judicial Magistrate Court No. 1, Mandi, Himachal Pradesh in Case N.I. Act No. 62-III/15/13 to the extent that the compensation as per the provisions of Negotiable Instruments Act be awarded to him along with the cost of litigation and conviction be awarded to the respondent in consonance with the Act. 2. Brief facts leading to the filing of the present appeal is that the complainant/appellant had filed aforesaid complaint under Section 138 of the Negotiable Instruments Act, 1881(hereinafter referred to as the 'Act') against the respondent/accused on the ground that the respondent/accused had raised a loan of Rs. 3,00,000/- from him in the year 2012 for purchase of vehicle and promised to return it on or before 01.01.2013. In order to discharge his legal liability, the respondent/accused issued a cheque No. 116996 dated 01.01.2013 for Rs. 3,00,000/- drawn on SBI Branch, Kotli, District Mandi, to the appellant/complainant. On presentation of the cheque by the complainant to his banker, the same got dishonoured. Thereafter, complainant issued a legal notice to the accused/respondent through his counsel on 13.02.2013 which was received by the respondent but neither any reply to the notice was given nor any payment was made within the stipulated period. Hence, the present complaint was filed. 3. On conclusion of the trial, the learned trial Magistrate vide impugned judgment dated 26.06.2015 convicted and sentenced the respondent/accused to undergo simple imprisonment for six months and to pay compensation of Rs. 3,00,000/- and in default he was further directed to undergo simple imprisonment for three months under Section 138 of the Act. 4. Today, the petitioner and respondent are present in the Court and identified as such by their respective counsel(s). It is jointly stated by learned counsel for the parties that they have amicably settled the matter and now the appellant/complainant does not want to pursue this case against the respondent/accused. 5. On 15.07.2016, the respondent had undertaken to pay a sum of Rs. 1,80,000/- on the next date of hearing and the same was accordingly paid to the appellant/complainant on 09.09.2016, however, the respondent was directed to pay additional amount of Rs. 20,000/- to the appellant/complainant which has been paid to the appellant/complainant in the open Court today. 5. On 15.07.2016, the respondent had undertaken to pay a sum of Rs. 1,80,000/- on the next date of hearing and the same was accordingly paid to the appellant/complainant on 09.09.2016, however, the respondent was directed to pay additional amount of Rs. 20,000/- to the appellant/complainant which has been paid to the appellant/complainant in the open Court today. Moreover, the respondent/accused has already deposited a sum of Rs. 1,50,000/- before the trial Court. Thus, the respondent/accused in this way has paid a sum of Rs. 3,50,000/- to the appellant/complainant. The amount deposited before the trial Court be released to the appellant/complainant as per procedure. 6. From the records of the case, I find that this is not a case wherein the offence for which the respondent/accused has been charged can 'stricto sensu' be termed to be an offence against the State. Therefore, this is a case where the continuation of criminal case against the respondent/accused would put him to great oppression and prejudice and extreme injustice would be caused to him by not setting aside the impugned judgment of conviction and sentence. 7. This court is not powerless in such situation and adequate powers have been conferred upon it not only under sections 397 read with Section 401 or Section 482 Cr.P.C. (hereinafter referred to as the Code), but also under Section 147 of the Act, for accepting the settlement entered into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to subserve the ends of justice or/ and to prevent abuse of the process of any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc. The law on this subject has been summed up in a judgment of the Hon'ble Supreme Court in Narinder Singh & Ors. v. State of Punjab & Anr. JT 2014 (4) SC 573, wherein it was held as under: "(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. v. State of Punjab & Anr. JT 2014 (4) SC 573, wherein it was held as under: "(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is t to be exercised sparingly and with caution. (II) When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure: (i) ends of justice, or (ii) to prevent abuse of the process of any Court. While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives. (III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the of offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender. (IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves. (V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases. (VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. (VI) Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. (VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime." 8. As already observed herein, the parties have already reached an amicable settlement and at best it was the appellant/complainant who could be said to be affected and aggrieved party, but herein even the affected and aggrieved party i.e. the appellant/complainant is not interested to pursue this appeal and does not want to hold the respondent/accused responsible for the aforesaid offence. Therefore, quashing of the complaint initiated at the instance of the appellant/complainant would be a step towards securing the ends of justice and to prevent abuse of process of the Court. 9. Keeping in mind the aforesaid exposition of law, it is clear that the facts of this case do not in any manner fall within the exception culled out by the Hon'ble Supreme Court in Narinder Singh's case (supra). 10. 9. Keeping in mind the aforesaid exposition of law, it is clear that the facts of this case do not in any manner fall within the exception culled out by the Hon'ble Supreme Court in Narinder Singh's case (supra). 10. Thus, taking holistic view of the matter and further taking into consideration all the attending facts and circumstances as also the law laid down by the Hon'ble Supreme Court in Narinder Singh's case (supra), I find this to be a fit case to exercise the powers not only under Sections 397, 401 and 482 of the Code, but even under Section 147 of the Act. 11. Accordingly, judgment dated 26.06.2015 passed by the learned Additional Chief Judicial Magistrate, Court No. 1, Mandi, in Case N.I. Act No. 62-III/15/13, titled Damodar Dass v. Kashmir Singh' in a complaint filed by the appellant/complainant under Section 138 of the Act, whereby the respondent/accused was convicted and sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 3,00,000/- to the appellant/complainant with default clause, is set aside. Consequently, the respondent/accused is acquitted of the offence under Section 138 of the Act. 12. The appeal is disposed of in the aforesaid terms, so also the pending application(s), if any.