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Himachal Pradesh High Court · body

2018 DIGILAW 2286 (HP)

Sunil Jishtu v. Jagdeep Kumar

2018-12-24

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. By way of instant criminal revision petition filed under Section 397 read with Section 401 of Cr.PC, challenge has been laid to judgment dated 18.5.2018, passed by the learned Additional Sessions Judge, Rampur Bushehar, District Shimla, H.P., in Criminal Appeal No. 30–R/10 of 2016, affirming the judgment of conviction and sentences dated 8.6.2016 and 22.6.2016, recorded by the learned Additional Chief Judicial Magistrate, Rampur, in criminal complaint No. 138 NIA/0000050/2014, whereby the learned trial Court while holding the 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 one year and to pay compensation to the tune of Rs.2,50,000/- . 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 Additional Chief Judicial Magistrate, Rampur Bushehar, H.P., against the present petitioner-accused, alleging therein that, during July-August, 2013, the petitioner-accused had purchased apple boxes from him and upon settlement of accounts, an amount of Rs. 2,24,752/- remained outstanding against the accused. Accused with a view to discharge his liability, issued a cheque bearing No. 756523 dated 1.10.2013, for a sum of Rs. 200,000/- drawn at UCO Bank, Thanedhar, however, fact remains that the aforesaid cheque was dishonoured on its presentation on account of 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 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, Rampur Bushehar, H.P., which also came to be dismissed vide judgment dated 18.5.2018, 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, Rampur Bushehar, H.P., which also came to be dismissed vide judgment dated 18.5.2018, 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 his acquittal after setting aside the judgments of conviction recorded by the courts below. 5. On 17.8.2018, counsel representing the petitioner, informed this Court that petitioner is ready and willing to get the offence compounded in terms of law laid down by the Hon’ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663 and accordingly, this Court while suspending substantive sentence imposed by the court below, directed the accused to furnish personal bond in the sum of Rs 25,000/- with one surety of the like amount to the satisfaction of the trial Court with a period of four weeks. This Court also directed the petitioner to deposit 15% of cheque amount before the HP State Legal Services Authority within a period of two weeks. 6. Careful perusal of order dated 16.11.2018, suggests that in terms of order dated 17.8.2018, though petitioner-accused deposited the entire amount of compensation i.e. 2,50,000/- in the learned trial Court in terms of judgment dated 8.6.2016, passed by the learned court below, whereas he failed to deposit 15% of cheque amount before the HP State Legal Services Authority within the stipulated period, as directed by this Court vide order dated 17.8.2018. 7. Today, during the proceedings of the case, learned proxy counsel representing the petitioner, on the instructions of petitioner, who is present in Court, states that petitioner had though prepared the draft of Rs. 30,000/- to be deposited with the State Legal Services Authority, in terms of order dated 17.8.2018, but it refused to accept the same since time granted by this Court had expired. Learned proxy counsel further contended that since entire compensation amount stand deposited in the learned trial Court, this court while exercising powers under Section 147 of the Act and guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu’s case supra, can order for compounding of offence. 8. Learned proxy counsel further contended that since entire compensation amount stand deposited in the learned trial Court, this court while exercising powers under Section 147 of the Act and guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu’s case supra, can order for compounding of offence. 8. Having taken note of the fact that entire compensation amount i.e. Rs. 2,50,000/- stands deposited in the court below, learned proxy counsel representing the respondent states that he has no objection in case prayer made for compounding of offence is accepted, but amount lying deposited in the learned trial Court may be ordered to be released in favour of the complainant. 9. Consequently, in view of the above, this Court sees no impediment in accepting the prayer made on behalf of the parties. Hon’ble Apex Court in Damodar S. Prabhu case (supra), 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. Learned trial Court is directed to release the entire amount in favour of the complainant on his making appropriate application. HP State Legal Services Authority is directed to accept the demand draft of Rs. 30,000/- in terms of order dated 17.8.2018. Accordingly, the petition is disposed of along with pending applications, if any.