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2018 DIGILAW 1467 (HP)

Mohinder Singh v. Devi Chand

2018-08-07

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - By way of instant criminal revision petition filed under Section 397 read with Section 401 Cr.PC, challenge has been laid to judgment dated 13.11.2017, passed by the learned Additional Sessions Judge, Kullu, H.P., in Criminal Appeal No. 34 of 2017, affirming the judgment of conviction dated 4.3.2017, recorded by the learned Judicial Magistrate, Ist Class, Manali, District Kullu, in criminal case No. 542-1/2013//62-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 him to undergo simple imprisonment for a period of seven months and to pay lump-sum compensation to the tune of Rs. 1,90,000/-. 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, who was well known to him, asked for a sum of Rs. 1,70,000/- on return basis. Complainant on the aforesaid request having been made by the accused lent the aforesaid amount to the complainant to meet his domestic expenses and accused with a view to discharge his liability, issued a cheque bearing No. 000001, dated 3.10.2013, amounting to Rs. 1,70,000/-, drawn at Bank of Baroda, Branch Manali, in favour of the complainant, however, fact remains that the aforesaid cheque was dishonoured on its presentation vide memo dated 4.10.2013, with remarks "insufficient funds". Since petitioneraccused failed to make the payment good within the stipulated period despite issuance of legal notice dated 2.11.2013 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 him 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 13.11.2017, as a consequence of which, judgment of conviction recorded by the learned trial Court came to be upheld. 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 13.11.2017, 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 his acquittal after setting aside the judgments of conviction recorded by the courts below. 5. Vide order dated 5.3.2018, this Court suspended the substantive sentence imposed upon the accused subject to his depositing entire compensation amount and furnishing personal bond in the sum of Rs. 25,000/- within one surety in the like amount to the satisfaction of the learned trial Court. On 1.6.2018, learned counsel for the petitioner informed this Court that an amount of Rs. 95,000/- already stands deposited with the learned trial Court, whereas petitioner has brought a demand draft amounting to Rs. 40,000/- to be deposited with the Registry of this Court. On that day, learned counsel sought time to deposit the remaining amount of Rs. 55,000/- within a period of four weeks. 6. Today, during the proceedings of the case, Mr. Rajesh Mandhotra, learned counsel for the petitioner, as per instructions imparted to him by the accused, informed this Court that entire amount stands deposited before the Registry of this Court as well as trial Court. He further stated that since entire amount stands deposited, instant case can be ordered to be compounded by this Court while exercising power under Section 147 of the Act. He also invited attention of this Court to the judgment passed by the Hon''ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. , (2010) 5 SCC 663 , and prayed that petitioner accused may be acquitted of the charge farmed against him. 7. Mr. Mukul Sood, learned counsel for the respondent stated that he has no objection to the aforesaid prayer having been made by the learned counsel for the petitioner-accused subject to condition that amount lying deposited in the Registry of this Court as well as learned trial Court is released in favour of the complainant. 8. 7. Mr. Mukul Sood, learned counsel for the respondent stated that he has no objection to the aforesaid prayer having been made by the learned counsel for the petitioner-accused subject to condition that amount lying deposited in the Registry of this Court as well as learned trial Court is released in favour of the complainant. 8. Consequently, in view of the aforesaid development as well as fair stand adopted by the learned counsel for the respondent, this Court sees no impediment in accepting the prayer made in the petition. Hon''ble Apex Court in Damodar S. Prabhu case , has categorically 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. Accordingly, 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 him under Section 138 of the Act. Interim order is vacated. Bail bonds, if any, discharged. Needless to say, amount lying deposited in the Registry of this Court as well as learned trial Court shall be released in favour of the complainant on his making appropriate application. Accordingly, the petition is disposed of alongwith pending applications, if any.