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Himachal Pradesh High Court · body

2018 DIGILAW 2303 (HP)

Devi Dutt v. Oriental Bank of Commerce

2018-12-28

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. By way of instant Criminal Revision Petition filed under Section 397/401 of the Code of Criminal Procedure, challenge has been laid to judgment dated 19.3.2015, passed by learned Additional Sessions Judge, Kullu, District Kullu, H.P. in Criminal Appeal No. 76 of 2014(2013), affirming the judgment of conviction dated 20.8.2013, passed by learned Chief Judicial Magistrate, Kullu, District Kullu, H.P. in Complaint No. 441/1 of 2011, whereby learned trial Court while holding petitioner-accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for three months and to pay compensation to the tune of Rs. 6,69,731/- i.e. cheque amount of Rs. 6,09,731/- and Rs. 60,000/- on account of loss suffered by the complainant due to non payment to the complainant-bank. 2. Briefly stated facts, as emerge from the record are that respondent No. 1 (for short ‘complainant’) filed a complaint under Section 138 of the Negotiable Instruments Act ( for short ‘Act’) in the Court of learned Chief Judicial Magistrate, Kullu, District Kullu H.P. alleging therein that the petitioner (for short ‘accused’) availed house loan facility of Rs. 5,00,000/- from the complainant-bank and in order to return the same, issued cheque No. 291332, dated 9.9.2011, amounting to Rs. 6,09,731/- in favour of the complainant-bank. But fact remains that aforesaid cheque on presentation to the concerned back was dishonoured with the remarks “insufficient funds.” Immediately after receipt of memo from the bank concerned, complainant-bank served accused with statutory legal notice, calling upon him to make the payment good within the stipulated period, but since accused failed to make the payment good within the prescribed period, complainant was compelled to initiate proceedings under Section 138 of the Act, in the appropriate Court of law. 3. Learned trial Court on the basis of the evidence adduced on record by the respective parties, held accused guilty of having committed the offence punishable under Section 138 of the Act vide judgment dated 20.8.2013 and accordingly convicted and sentenced him, as per the description given hereinabove. 4. 3. Learned trial Court on the basis of the evidence adduced on record by the respective parties, held accused guilty of having committed the offence punishable under Section 138 of the Act vide judgment dated 20.8.2013 and accordingly convicted and sentenced him, as per the description given hereinabove. 4. Feeling aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned trial court, present petitioner-accused preferred an appeal under Section 374(3) Cr.P.C. in the Court of learned Additional Sessions Judge, Kullu, which also came to be dismissed vide judgment dated 19.3.2015, as a result of which, judgment of conviction and sentence recorded by the learned trial Court came to be upheld. In the aforesaid background, petitioner has approached this Court by way of instant Criminal Revision Petition, praying therein for his acquittal after quashing and setting aside the impugned judgments passed by learned Courts below. 5. On 21.12.2018, learned counsel representing the parties stated before this Court that there is possibility of amicable settlement inter se parties and as such, on the joint request having been made by learned counsel for the parties, this Court summoned both the parties to the Court. Complainant as well as accused are present in Court today. 6. Today, during the proceedings of the case, Mr. Naveen K. Bhardwaj, learned counsel representing the petitioner, on instructions of the petitioner, who is present in Court, stated that petitioner-accused has agreed to pay sum of Rs. 1,85,000/- under one time settlement scheme floated by the complainant bank, which is acceptable to the complainant bank. He further contended that a sum of Rs. 10,000/- has been paid to the bank, whereas amount lying deposited with the trial Court i.e. Rs.1, 75,000/- may be ordered to be released in favour of the complainant bank. He further contended that in view of aforesaid settlement inter se parties, instant case can be ordered to be compounded in terms of section 147 of the Negotiable Instruments Act and as per the guidelines framed by the Hon’ble Apex Court in Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663 . 7. Mr. B.C. Verma, learned counsel representing the complainant-bank, on the instructions of Sh. 7. Mr. B.C. Verma, learned counsel representing the complainant-bank, on the instructions of Sh. Sanjeev Sharma, Branch Manager, Oriental Bank of Commerce, Akhara Bazar, Kullu, District Kullu, H.P. while fairly acknowledging the factum with regard to compromise arrived inter se parties, contended that complainant-bank while accepting one time settlement offer made by the accused has compromised the matter for Rs. 1,85,000/-. He further contended that complainant-bank has received a sum of Rs. 10,000/- whereas remaining amount lying deposited with the trial Court may be ordered to be released in the favour of the complainant-bank. 8. This Court also recorded the statement of above named Branch Manager on oath, who stated that he of his own volition and without there being any external pressure has entered into the compromise with the petitioner-accused. He contended that he being Branch Manager of the bank concerned is authorized to make statement and to enter into one time settlement scheme with the petitioner-accused. He fairly stated that as per one time settlement scheme, complainant-bank has compromised the matter for a sum of Rs. 1,85,000/- out of which Rs. 10,000/- has received, whereas a sum of Rs. 1,75,000/- stated to be lying deposited with the learned trial Court is yet to be released in favour of the complainant-bank. He stated that in case trial court is directed to release aforesaid amount in favour of the bank, the complainant-bank shall have no objection in compounding the offence and setting aside the judgments of conviction recorded by the learned Court below 9. Consequently, in view of the fair stand adopted by Sh. Sanjeev Sharma, Branch Manager, this Court sees no impediment in accepting the prayer for compounding the offence while exercising power under section 147 of the Negotiable Instruments Act. 10. Accordingly, in view of the aforesaid discussion made hereinabove, instant matter is ordered to be compounded and judgments passed by learned Courts below are quashed and set-aside. The petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. The bail bonds of the accused are ordered to be discharged. 11. Learned trial Court is directed to remit a sum of Rs. 1,75,000/- alongwith up to date interest lying deposited with it in the saving account of the Oriental bank of Commerce, details whereof shall be furnished by learned counsel representing it within a period of two days. 12. The bail bonds of the accused are ordered to be discharged. 11. Learned trial Court is directed to remit a sum of Rs. 1,75,000/- alongwith up to date interest lying deposited with it in the saving account of the Oriental bank of Commerce, details whereof shall be furnished by learned counsel representing it within a period of two days. 12. The petition is disposed of along with pending applications, if any.