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2018 DIGILAW 1856 (HP)

Anil Kumar Dohru v. Ranjeet Kumar

2018-10-25

DHARAM CHAND CHAUDHARY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. In this petition, judgment dated 6.10.2017, passed by learned Additional District Judge (III), Kangra at Dharamshala, District Kangra, H.P., in Cr. Appeal No.77-P/X/13/2010, is under challenge. The petitioner-convict, has been convicted vide judgment dated 27.8.2010, passed by learned Judicial Magistrate, 1st Class, Palampur, District Kangra, in Criminal Complaint No.86-III/2008, under Section 138 of Negotiable Instrument Act and sentenced to undergo simple imprisonment for a period of six months and to pay Rs.2,20,000/- as compensation to make good the loss suffered by the respondent-complainant. 2. In appeal, learned Appellate Court has affirmed the findings of conviction and sentence recorded by learned trial Court against the convict-petitioner and had dismissed the appeal vide judgment under challenge in this petition. 3. The convict-petitioner has already deposited the amount partly, i.e., Rs. 1,20,000/- in learned trial Court. The remaining amount, i.e., Rs. 1,00,000/-, he paid in cash to respondent-complainant Ranjeet Kumar. The respondent-complainant, therefore, is now no more interested to prosecute the convict-petitioner in these proceedings. It is for this reason, he had filed an application under Section 320 of the Cr.P.C read with Section 482 Cr.P.C, for compounding of the offence. 4. As a matter of fact, in terms of Section 147 of the Negotiable Instrument Act, an offence committed under the Act is compoundable. The compounding of offence in a case under the Act is permissible at appellate stage also as per law laid down by the Hon’ble Apex Court in Damodar S. Prabhu vs. Sayed (2010) 5 SCC, 663, however, subject to payment of cost while allowing the compounding at appellate stage. The imposition of cost was insisted upon keeping in mind that an application for compounding, having been made after several years, not only results delay in the justice delivery system being burdened with such litigation, but also the complainant is deprived of speedy and effective justice. This Court while applying the ratio of the judgment (supra), in Dhiraj Singh and others vs. M/s Suriti Enterprises, latest HLJ 2013 (HP) 1120 and Gian Singh vs. State of Punjab and another (2012) 10 SCC 303 , has held as under:- “13. The present, however, is a case where compounding of offence is permissible under Section 147 of the Act, which provides for compounding of offence committed under Act, reads as under. “147. Offences to be compoundable. The present, however, is a case where compounding of offence is permissible under Section 147 of the Act, which provides for compounding of offence committed under Act, reads as under. “147. Offences to be compoundable. Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974) every offence punishable under this Act shall be compoundable.” “14 Section 147 of the Act, therefore, is in the nature of enabling provision, which provides for the compounding of offences, under the Act, thereby serving as an exception to the general rule incorporated under sub-section (9) of Section 320 of the Code of Criminal Procedure. The judgment in Gian Singh’s case supra, deals with the non-bailable offences, under Indian Penal Code and even under special statute, such as prevention of Corruption Act etc., where no special provisions exist regarding compounding of offence. However, since in the negotiable Instruments Act Section 147 was inserted by way of amendment, the same, therefore, provides for the compounding of offences, prescribed under the said Act and overrides the effect of Section 320 (9) Code of Criminal Procedure. Therefore, the ratio of the judgment in Gian Singh’s case supra has no application the case in hand for the reason that the offence the accused petitioners allegedly committed, is compoundable under Section 147 of the Act and as such, the application of Section 482 Cr.PC, is also not attracted in the case in hand and the offence rather can be compounded.” “15 Now adverting the question that the compounding of the offence in the given facts and circumstances is permissible without insisting for the deposit of cost in terms of the judgment of the Apex Court in Damodar S. Prabu’s case supra, no doubt the Apex court has observed that imposition of cost, suggested under the graded scheme is a matter of discretion, however, in no case this judgment provides for exempting an accused from payment of cost, though the Court may reduce the cost in the given facts and circumstances of a case by recording reasons there for in writing. The relevant portion of this judgment reads as follows: “21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. The relevant portion of this judgment reads as follows: “21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any state, however, belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines as followed:- THE GUIDELINES (i) In the circumstances, it is proposed as follows: (a) that directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. 22 to 24 xxxxx 25. The graded scheme for imposing costs is a means to encourage compounding at any early stage of litigation. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. 22 to 24 xxxxx 25. The graded scheme for imposing costs is a means to encourage compounding at any early stage of litigation. In the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent Court can of course reduce the course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end.” “16 It is, therefore, seen that the object behind framing the graded scheme for imposition of cost is to encourage the compounding of offence committed under the Act at an early stage. Payment of cost suggested to be paid by the accused under the scheme is, therefore, an essential element of such compounding and no exemption from payment of such cost is permissible. What, however, legally permissible is that the Court, where the prayer for compounding of the offence is made, may reduce the costs, that too having regard to the specific facts and circumstances of a case by recording reasons there for in writing.” 5. Since, the convict-petitioner has paid the entire amount of compensation and as the respondent-complainant is no more interested to prosecute the convict-petitioner any further, therefore, while allowing him to compound the offence committed by the convict-petitioner, the impugned judgment and decree is quashed and set aside and he is acquitted of the charge framed against him. 6. Since, the convict-petitioner has paid the entire amount of compensation and as the respondent-complainant is no more interested to prosecute the convict-petitioner any further, therefore, while allowing him to compound the offence committed by the convict-petitioner, the impugned judgment and decree is quashed and set aside and he is acquitted of the charge framed against him. 6. Now coming to the cost part, since, the prayer for compounding of offence has been made in this Court during the course of proceedings in the present revision petition and as per graded scheme as framed by Hon’ble Apex Court in Damodar S. Prabhu’s case (supra), compounding of offence can be allowed, subject to payment of 15% of the cheque amount which in view of the given facts of a case, can even be imposed at reduced rates also. 7. Therefore, in the case in hand, when the convict-petitioner has already deposited the amount of compensation and the respondent-complainant has not only burdened him, but also filed an application for compounding of offence, the cost, i.e. 7½% on Rs. 2,00,000/-,the cheque amount is imposed upon him, which he shall deposit in the office of Secretary, District Legal Services Authority, Kangra at Dharamshala, within a period of eight weeks from today. The receipt in proof of such deposit be produced on 26th December, 2018, on which date matter shall be listed in the Chamber at 4.15 P.M. 8. Since, Rs. 1,20,000/- in part payment of the amount of compensation is lying deposited in the trial court, there shall be a direction to learned Trial Judge to release the same in favour of respondent-complainant Ranjeet Kumar by remitting the same to his account on a formal application to be filed by him in this regard. The revision petition and also the application Cr.MP No.1524 of 2018 are accordingly disposed of. Pending applications, if any, shall also stand disposed of.