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2017 DIGILAW 1273 (HP)

Rakesh Thakur v. Jalap Ram Thakur

2017-11-20

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. (Oral) - By way of instant revision petition filed under Section 397 read with section 401 CrPC, 1973 challenge has been laid to the judgment dated 1.7.2017, in Criminal Appeal No. 21 of 2017 (Registration No. 37 of 2017) passed by Additional Sessions Judge, Kullu, Himachal Pradesh, affirming judgment/order of conviction dated 19.10.2016/20.10.2016, passed by Judicial Magistrate 1st Class, Manali, District Kullu, Himachal Pradesh, in Criminal Case No. 144- 1/ 2013//85-III/2014, whereby learned trial Court while holding petitioner-accused guilty of having committed offence under section 138 of the Negotiable Instruments Act, convicted and sentenced the petitioner to undergo simple imprisonment for eight months and also to pay a compensation of Rs. 3,60,000/-. 2. Briefly stated the facts of the case as emerge from the record are that petitioner-accused borrowed a sum of Rs. 3.00 Lakh from the complainant for business and domestic needs. Aforesaid amount of Rs. 3.00 Lakh was paid by the complainant to the petitioner-accused through cheque and said cheque was encashed on 4.12.2012. Petitioner-accused with a view to discharge his liability, issued cheque bearing No. 012741 dated 14.2.2013, amounting to Rs. 3.00 Lakh drawn on State Bank of Patiala, Manali, in favour of the complainant. However, the fact remains that aforesaid cheque was dishonoured vide memorandum dated 18.2.2013 with the remarks, "insufficient funds". After aforesaid dishonouring of cheque, respondent-complainant got issued a legal notice to the petitioner-accused calling upon him to make good the payment within 15 days but since no steps were taken by the petitioner to make payment in terms of legal notice issued by the respondent-complainant, he was compelled to initiate proceedings under section 138 of Negotiable Instruments Act in the Court of learned Judicial Magistrate 1st Class, Manali, District Kullu. Learned trial Court, on the basis evidence adduced on record by the respondent-complainant, held petitioner-accused guilty of having committed offence punishable under section 138 of the Negotiable Instruments Act and convicted and sentenced him as per description given above. 3. Being aggrieved by and dissatisfied with the judgment of conviction recorded by the learned Judicial Magistrate 1st Class, present petitioner filed a criminal appeal under section 374 (3) of the Code of Criminal Procedure, 1973 before the Additional Sessions Judge, Kullu, which came to be registered as Cr. Appeal No. 21 of 2017. 3. Being aggrieved by and dissatisfied with the judgment of conviction recorded by the learned Judicial Magistrate 1st Class, present petitioner filed a criminal appeal under section 374 (3) of the Code of Criminal Procedure, 1973 before the Additional Sessions Judge, Kullu, which came to be registered as Cr. Appeal No. 21 of 2017. However, the fact remains that the aforesaid appeal having been preferred by the petitioner-accused was dismissed, as a result of which, judgment of conviction recorded by the learned trial Court came to be upheld. In the aforesaid background, present petitioner approached this Court by way of instant proceedings, seeking his acquittal after setting aside judgment of conviction recorded by the learned trial Court. 4. On 27.10.2017, learned counsel representing the petitioner, informed this Court that the parties are in the process to settle the matter amicably inter se them and as such, he may be given some time to do the needful. Today, during the proceedings of the case before this Court, learned counsel representing the petitioner stated that the parties have amicably settled the matter inter se them. Mr. Neeraj Gupta, on the instruction of the petitioner, who is present in the Court, stated that an amount of Rs. 1,50,000/- is lying deposited before the learned trial Court, which can be ordered to be released in favour of the respondent-complainant. He further stated that in terms of compromise arrived inter se parties, an amount of Rs. 1.00 Lakh has been handed over to the respondent-complainant, which fact has been acknowledged by the learned counsel representing the respondent-complainant. Mr. Neeraj Gupta, learned counsel representing the petitioner further stated that an amount of Rs. 1,10,000/- is also handed over in the shape of Cheque bearing No. 000009 dated 24.12.2017, to the respondent-complainant , as such, entire amount, in terms of the judgment passed by the learned trial Court stands paid. 5. Ms. Anjali Soni Verma, Advocate, on the instructions of the respondent-complainant, who is also present in the Court, also stated that parties have compromised the matter and complainant has no objection in case instant case is ordered to be compounded in terms of judgment titled as Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663 . 6. 5. Ms. Anjali Soni Verma, Advocate, on the instructions of the respondent-complainant, who is also present in the Court, also stated that parties have compromised the matter and complainant has no objection in case instant case is ordered to be compounded in terms of judgment titled as Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663 . 6. This Court, solely with a view to ascertain the correctness and genuineness of the averments made by the learned counsel representing the parties, also recorded statements of the parties, who are present in the court. Both the parties on oath stated that they have compromised the matter on their own volition without there being any external pressure upon them. Mr. Rakesh Kumar, petitioner, stated that he has no objection in case amount lying deposited before the learned trial Court is released in favour of the complainant and in case cheque amounting to Rs. 1,10,000/- is not honoured, he shall render himself liable for penal consequences as well as contempt of Court. Similarly, respondent-complainant has also acknowledged the factum with respect to compromise arrived inter se the parties. Their statements are taken on record. 7. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court (supra), judgments of conviction passed by learned courts below are set-aside and the petitioner-accused is acquitted of the charges framed against him. Bail bonds furnished by the petitioner are discharged. Amount, if any, lying deposited with the trial Court/this Court, may be released in favour of the complainant, on making appropriate application for the purpose, forthwith. Needless to say that in case aforesaid cheque amounting to Rs. 1,10,000/- is dishonoured, respondent-complainant shall be at liberty to get this matter revived. 8. The petition is disposed of in aforesaid terms, alongwith pending applications, if any. Petition disposed of.