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2017 DIGILAW 1304 (HP)

Munshi Ram v. Vijay Kumari

2017-11-27

SANDEEP SHARMA

body2017
JUDGMENT Sandeep Sharma, J. (Oral) - Instant criminal revision petition filed under Section 397, 401 read with Section 482 of Cr.PC, is directed against the judgment dated 23.10.2007, passed by the learned Additional Sessions Judge, Fast Track Court, Solan (camp at Nalagarh) in Cr. Appeal No. 4FTN/10 of 2007, affirming the judgment of conviction, dated 30.6.2007, passed by the learned Judicial Magistrate, Ist Class, Nalagarh, in Criminal Complaint No. 120/3 of 2002, whereby the learned trial Court while holding petitioner-accused guilty of having committed offence punishable under section 138 of the Negotiable Instruments Act (in short the Act), convicted and sentenced him to undergo simple imprisonment for three months and to pay fine to the tune of Rs. 1000/-and in default of payment of fine, to further undergo simple imprisonment for a period of one month. Apart from above, learned trial court also held respondent/complainant entitled to compensation to the tune of Rs. 40,000/- payable by the petitioner-accused. 2. Briefly stated facts, as emerge from the record, are that petitioner-accused, who is a forest contractor, was in need of some money and as such, he requested respondent-complainant to advance him a loan of Rs. 40,000/-. Acceding to aforesaid request of petitioner-accused, respondent-complainant gave Rs. 40,000/- to the petitioner-accused, who with a view to discharge his aforesaid liability, issued Cheque bearing No. 207938, dated 17.4.2002, amounting to Rs. 40,000/-, drawable from the Jogindera Central CoOperative Bank, Nalagarh, However, fact remains that aforesaid cheque was dishonoured on its presentation to the bank concerned with remarks "insufficient funds". Respondent-complainant by way of legal notice called upon the petitioner-accused to make payment within a period of 15 days. Since petitioner-accused failed to make payment good within the stipulated time despite requests having been made by the respondent-complainant through legal notice, she was compelled to initiate proceedings against the petitioner-accused, under Section 138 of the Act, before the competent court of law. 3. Subsequently, learned trial Court, on the basis of evidence adduced on record by the respective parties, held the petitioner-accused guilty of having committed offence punishable under Section 138 of the Act and accordingly vide judgment/order dated 30.6.2007, convicted and sentenced him as per description given supra. 4. 3. Subsequently, learned trial Court, on the basis of evidence adduced on record by the respective parties, held the petitioner-accused guilty of having committed offence punishable under Section 138 of the Act and accordingly vide judgment/order dated 30.6.2007, convicted and sentenced him as per description given supra. 4. Being aggrieved and dis-satisfied with judgment of learned trial Court, petitioner-accused preferred an appeal before the Court of learned Additional Sessions Judge, Fast Track Court, Solan camp at Nalagarh, HP, however, fact remains that the same was dismissed vide judgment dated 23.10.2007, as a result of which, judgment of conviction recorded by the learned trial Court came to be upheld. In the aforesaid background, petitioner-accused approached this Court by way of instant criminal revision petition, seeking therein his acquittal after setting aside the impugned judgment of conviction passed by the courts below. 5. On 18.8.2017, learned counsel, representing the petitioner, stated at bar that petitioner is ready and willing to make the complete payment in terms of the judgment passed by the courts below and as such, matter can be ordered to be compounded in terms of judgment passed by the Hon''ble Apex Court passed in Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663 . 6. Taking note of aforesaid submissions having been made by the learned counsel, representing the petitioner, this Court vide order dated 27th October, 2017, directed both the parties to remain present in the Court. Sequel to order dated 27th October, 2017, respondent-complainant has come present but petitioner-accused is not present. Mr. Hem Raj Bhardwaj, learned counsel, representing the petitioner, stated that petitioner was unable to come due to illness and he has instruction to state that entire amount in terms of judgment passed by the learned trial court stand deposited with the Registry of the Hon''ble Court and same can be ordered to be released in favour of respondent-complainant. 7. Mr. Tarun K. Sharma and Mr. Rahul Kashyap, learned counsel, representing the respondent, who is present in the Court, stated that in case the aforesaid amount lying deposited in the Registry is ordered to be released in favour of the complainant, she has no objection in getting the matter compounded in terms of judgment rendered by the Hon''ble Apex Court in Damodar case (supra). Rahul Kashyap, learned counsel, representing the respondent, who is present in the Court, stated that in case the aforesaid amount lying deposited in the Registry is ordered to be released in favour of the complainant, she has no objection in getting the matter compounded in terms of judgment rendered by the Hon''ble Apex Court in Damodar case (supra). Learned counsel representing the petitioner further stated that since respondent-complainant was put to undue hardship for realization of her own money, she may be compensated by awarding some adequate compensation. Respondent-complainant, who is present in the Court has also stated on oath before this Court that in case aforesaid amount of Rs. 40,000/- is released in her favour, she has no objection for getting this matter compounded in terms of the judgment passed by learned Apex Court in Damodar''s Case (supra). She categorically stated before this Court that she has compromised the matter with her own free will and there is no external pressure upon her. Her statement is taken on record. 8. Consequently, in view of above, present matter is ordered to be compounded and impugned judgments passed by the courts below are quashed and set-aside and the petitioner accused is acquitted of the charge framed against him under Section 138 of the Act. Interim order is vacated. Bail bonds, if any, discharged. However, it is made clear that petitioner accused shall pay an amount of Rs. 5,000/- as a litigation charges to the respondent complainant within a period of fifteen days from today, failing which, he shall render himself liable to face penal consequences as well as contempt of Court. Registry of the Court may release amount of fourty thousand lying deposited with it in favour of respondent-complainant forthwith. 9. Respondent-complainant is at liberty to approach this Court for revival of the present petition, in case, petitioner accused fails to honour his commitment made before this Court. Accordingly, the petition is disposed of along with pending applications, if any.