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2018 DIGILAW 1439 (HP)

Kiran Bala v. Hirawati

2018-08-02

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. (Oral) - By way of instant criminal revision petition filed under Section 397 of the Cr.PC, challenge has been laid to judgment dated 2.4.2018, passed by the learned Additional Sessions Judge, Kullu, H.P., in Criminal Appeal No. 64 of 2017, affirming the judgment of conviction recorded by the learned Judicial Magistrate, Ist Class, Manali, District Manali, in criminal complaint No. 278-I/2013//74-III/2014, 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 her to undergo simple imprisonment for a period of six months and to pay compensation to the tune of Rs. 3,00,000/- 2. Briefly stated facts, as emerge from the record are that respondent-complainant preferred a complaint under Section 138 of the Act, before the learned Judicial Magistrate Ist Class, Manali District Kullu, H.P., against the present petitioner-accused, alleging therein that the petitioner-accused was well known to her and on her askance, she advanced a sum of Rs. 2,50,000/- in the month of December, 2012, to meet her business expenses. Subsequently, accused with a view to discharge her liability, issued a cheque bearing No. 10863780, dated 18.3.2013, amounting to Rs. 2,50,000/-, drawn at J&K Bank, Branch Manali, in favour of the complainant, however, fact remains that the aforesaid cheque was dishonoured on its presentation vide memo dated 20.3.2013, with remarks "insufficient funds". Since petitioner-accused failed to make the payment good within the stipulated period despite issuance of legal notice, respondent/complainant was compelled to initiate proceedings before the competent Court of law under Section 138 of the Act. 3. Learned trial Court on the basis of material adduced on record by the respective parties held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, sentenced her as per the description given herein above. 4. Being aggrieved and dis-satisfied with the aforesaid judgment of conviction recorded by the court below, accused preferred an appeal in the court of learned Additional Sessions Judge, Kullu, H.P., which also came to be dismissed vide judgment dated 2.4.2018, as a consequence of which, judgment of conviction recorded by the learned trial Court came to be upheld. In the aforesaid background, present petitioner-accused has approached this Court by way of instant proceedings, seeking therein her acquittal after setting aside the judgments of conviction recorded by the courts below. In the aforesaid background, present petitioner-accused has approached this Court by way of instant proceedings, seeking therein her acquittal after setting aside the judgments of conviction recorded by the courts below. 5. During the pendency of the present petition, petitioner accused moved an application under Section 482 Cr.PC, read with Section 147 of the Act, bearing Cr.MP No. 1067 of 2018, praying therein to compound the offence under Section 138 of the Act, in view of the compromise arrived inter-se the parties. 6. Today, during the proceedings of the case, Mr. Ashok Kumar, Advocate, who has filed power of attorney on behalf of the respondent, stated before this Court that during the pendency of the present petition, parties have arrived at amicable settlement and as per instructions imparted to him, respondent-complainant has received the entire amount in terms of the judgment passed by the learned trial Court and as such, respondent-complainant has no objection, in case prayer made in the application referred herein above, is accepted and accused is acquitted of the charges framed against her under Section 138 of the Act. 7. Mr. Ashok Kumar, learned counsel representing the petitioner-accused, contended that since entire amount in terms of judgment passed by the learned trial Court stands paid to the accused as has been fairly acknowledged by the learned counsel representing the respondent-complainant, prayer made in the application filed under Section 482 read with Section 147 Cr.PC, deserves to be accepted. He also contended that prayer made in the petition as well as application also deserves to be considered in light of the judgment rendered by the Hon''ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663 , wherein it has been held that court while exercising power under Section 147 of the Act can proceed to order compounding of offence even after recording of conviction by the courts below. 8. Consequently, in view of the aforesaid settlement arrived at between the parties as well as law laid down by the Hon''ble Apex Court in Damodar S. Prabhu case (supra), 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 charges framed against her under Section 138 of the Act. Interim order is vacated. Bail bonds, if any, discharged. Interim order is vacated. Bail bonds, if any, discharged. Accordingly, the petition is disposed of alongwith pending applications, if any.