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2018 DIGILAW 1800 (HP)

Sohan Lal v. Indira Devi

2018-10-05

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J. - The present application, under section 482 of the Code of Criminal Procedure, 1973 read with section 147 of the Negotiable Instruments Act, has been maintained by the applicant/petitioner/accused, for recalling judgment, dated 16.04.2018, passed by this Court in Cr. Revision No. 76 of 2017, whereby judgments and order of conviction passed by learned Courts below, have been upheld. 2. Briefly stating facts giving rise to the present application are that during January, 2014, applicant/accused (hereinafter to be called as "the accused") borrowed Rs. 1,00,000/- (Rupees one lac) from respondent No. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 1/complainant (hereinafter to be called as "the complainant") for his domestic needs and for discharging his liabilities. The said sum was to be returned within a reasonable time, however the accused did not return the same, and ultimately he issued cheque, dated 17.08.2014 in favour of the complainant. When the said cheque was presented for encashment by the complainant in Himachal Pradesh Gramin Bank, the same was dishonoured for want of sufficient funds. Accordingly, the complainant issued legal notice, dated 17.11.2014 against the accused, but the accused did not respond to the same. Thus, the complainant filed a complaint in the learned trial Court, in which, the accused was found guilty, under section 138 of the Negotiable Instruments Act (hereinafter to be called as "the Act") and he was convicted and sentenced to undergo simple imprisonment for a period of six months and to pay compensation of Rs. 1,00,000/- (Rupees one lac) and in default of payment of fine, he was further ordered to undergo simple imprisonment for a month. The accused challenged the said judgment and order of conviction before the learned Lower Appellate Court, but the same was dismissed and the judgment of learned trial Court was upheld. Thereafter, the accused approached this Court by way of Criminal Revision No. 76 of 2017, which was also dismissed and the judgment and order of conviction passed by the learned trial Court and upheld by the learned Lower Appellate Court was affirmed. Hence the present application. 3. Ms. Thereafter, the accused approached this Court by way of Criminal Revision No. 76 of 2017, which was also dismissed and the judgment and order of conviction passed by the learned trial Court and upheld by the learned Lower Appellate Court was affirmed. Hence the present application. 3. Ms. Leena Guleria, Advocate for the applicant has argued that as the amount in question has been paid to the complainant and the complainant has compromised the matter with the applicant as per the provisions of section 147 of Negotiable Instruments Act, vide Annexure A-2, the offence be compounded and the applicant be acquitted of the offence he was convicted. In support of her contentions, learned counsel for the applicant has placed strong reliance upon the judgment rendered by a Coordinate Bench of this Court in Gulab Singh vs. Vidya Sagar Sharma''s case, i.e. Cr. MP No. 1198 of 2017 in Cr. Revision No. 394 of 2015, whereby judgments of Hon''ble Apex Court, as well as Hon''ble Rajasthan and Gujarat High Courts are relied upon. The relevant extract of the judgment is as under: "9. Mr. Manohar Lal Sharma, learned counsel representing the petitioner, has invited attention of this Court to the judgment passed by Hon''ble High Court of Rajasthan in Naresh Kumar Sharma vs. State of Rajasthan & another, Criminal Misc. Application No. 371 of 2016 in Criminal Revision Petition No. 1267 of 2016, to suggests that in view of amicable settlement arrived inter se the parties, this Court has power to recall its judgment in the light of the provisions contained in Section 147 of the Act, which permits compounding of the offence under Section 138 of the Act. At this Stage, it would be profitable to reproduce the judgment passed by Hon''ble High Court of Rajasthan herein below:- "The accused-petitioner has filed this criminal misc. application under Section 482 Cr. P.C., 1973 read with section 147 of Negotiable Instruments Act (for short the ''Act'') with a prayer to review/recall the order dated 6.10.2016 passed by this Court in SB Criminal Revision Petition No. 1267/2016 in the light of compromise dated 4.11.2016 subsequently entered between the parties and as a consequences thereof to acquit the accused petitioner for the offence under section 138 of N.I. Act. Vide order dated 6.10.2016, the aforesaid revision petition filed by the petitioner was dismissed by this Court while upholding and affirming the judgment and order of conviction and sentence passed by the trial Court as well as by the Appellate Court. It was jointly submitted by the learned counsel for the parties that after the order dated 6.10.2016 the parties have amicably settled their dispute and entered into compromise and the amount in the dispute has been paid by the petitioner to the respondent complainant. It was further submitted that although the revision petition has been dismissed by this Court on merits vide order dated 6.10.2016, but even then that order can be recalled in the light of provisions of section 147 of N.I. Act which permits compound of the offence under Section 138 of the Act at any stage and the accused can be acquitted. In support of their submissions, they relied upon the case of K. Subramanian vs. R. Rajathi reported in (2010) 15 SCC 352 and order dated 7.7.2015 passed by a single Bench of Hon''ble Gujarat High Court in S.B. Criminal Misc. Application (Recall) No. 10232/2015 filed in Special Criminal Application No. 3026/2014. On consideration of submissions jointly made on behalf of the respective parties and the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent complainant and the principles of law laid down in the aforesaid decisions, I find it a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled. Consequently, the criminal misc. application is allowed and the order dated 6.10.2016 is recalled and all the orders whereby the accused-petitioner was convicted and sentenced for the offence under section 138 of N.I. Act are set aside and as a consequence thereof he is acquitted therefrom." 10. Reliance is also placed upon the judgment passed by Hon''ble Gujarat High Court, wherein similar application came to be filed for recalling the judgment passed by the Hon''ble High Court of Gujarat. Reliance is also placed upon the judgment passed by Hon''ble Gujarat High Court, wherein similar application came to be filed for recalling the judgment passed by the Hon''ble High Court of Gujarat. In the aforesaid judgment, Hon''ble Gujarat High Court, has reiterated that judgment passed by the High Court affirming the judgment of conviction recorded under Section 138 of the Act, can be recalled in view of the specific provisions contained in Section 147 of the Act, which provides for compounding of offence allegedly committed under Section 138 of the Act. 11. The Hon''ble Apex Court in K. Subramanian vs. R. Rajathi; (2010) 15 Supreme Court Cases 352, also in similar situation ordered for compounding of offence after recording of conviction by the Courts below, wherein it has been held as under:- "6 Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner has produced an affidavit sworn by him on 1.12.2008. The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs. 4,52,289 due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the petitioner. 7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.07.2008 and has undergone the sentence imposed on him by the trial Court and confirmed by the Sessions Court, the High Court as well as by this Court. The two affidavits sought to be produced by the petitioner as additional documents would indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of Rs. 4,52,289. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings. 8. Having regard to the salutary provisions of section 147 of the Negotiable Instruments Act read with section 320 of the Code of Criminal Procedure, 1973 this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code." 4. On the other hand, Mr. H.S. Rangra, Advocate, for respondent No. 1/complainant has argued that as the amount in question has been received by his client and she has entered into a compromise with the applicant, the present application may be allowed. 5. After going though the salutary provisions of section 147 of the Negotiable Instruments Act, read with section 320 of the Code of Criminal Procedure, 1973 this Court is of the opinion that in view of the compromise arrived at between the parties, the applicant/accused should be permitted to compound the offence committed by him under Section 138 of the Act. 6. In view of the judgment passed by a Coordinate Bench of this Court (supra) and the discussion made herein above, the present application is allowed and parties are permitted to get the matter compounded in light of the compromise arrived inter se them. Accordingly, the judgments and order of conviction and sentence passed by both the learned Courts below and affirmed by this Court are hereby set aside and judgment dated 16.04.2018, passed by this Court in Cr. Revision No. 76 of 2017, is recalled and the accused/petitioner/applicant is acquitted of offence punishable under Section 138 of the Act. Henceforth, the accused/petitioner/applicant is ordered to be set free, if not required in any other case. Bail bonds, if any, furnished by the accused/petitioner/applicant are discharged. Application stands disposed of.