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Himachal Pradesh High Court · body

2019 DIGILAW 1454 (HP)

Satish Kumar Thakur v. Surmukh Singh

2019-09-26

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Instant criminal revision petition filed under S.397 read with S.401 CrPC, lays challenge to judgment dated 2.1.2019 passed by learned Additional Sessions Judge, Sirmaur at Nahan, in Cr. Appeal No. 70-N/10 of 2015, affirming judgment/order of conviction and sentence dated 9.10.2015/15.10.2015 passed by Additional Chief Judicial Magistrate (I) Paonta Sahib, District Sirmaur, in Cr. Complaint No. 91/3 of 2009, whereby learned Court below, while holding petitioner-accused (hereinafter, =accused') guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, =Act'), convicted and accordingly sentenced him to undergo rigorous imprisonment for a period of six months and to pay compensation of Rs.3.00 Lakh and further to undergo four months' imprisonment in case of default. 2. Briefly stated the facts as emerge from the record are that respondent-complainant (hereinafter, =complainant') filed a complaint under S.138 of the Act in the court of learned Additional Chief Judicial Magistrate (1), Paonta Sahib, alleging therein that the accused used to hire JCB for carrying out construction work of new roads etc. In the second week of May, 2008, accused approached complainant for hiring JCB machine for two months to carry out construction work of road at Village Manal. It is alleged in the complaint that as per agreed terms, charges for hiring machine were Rs.600/- per working hour and Rs.3,000/- for idle day. It is further alleged in the complaint that it was agreed that the diesel for the JCB would be arranged by accused and payment thereof shall be adjusted towards amount payable to the complainant. It is further borne from the complaint that total work done in May, 2008 was of Rs.95,000/- and after deducting amount of diesel of Rs. 17,500/-, net amount of Rs.77,500/- was due from the accused. Further, total work done for the months of June and July, 2008 was Rs.1,28,595/- after deducting amount of diesel. Thus the total amount due from accused was Rs.2,06,595/-. Accused, with a view to discharge his liability, issued cheque bearing No. 932780 on 10.12.2008 in the name of complainant, amounting to Rs.2,06,000/-. However, fact remains that on presentation, said cheque was returned due to ?insufficient funds? in the account of the accused. 3. Thus the total amount due from accused was Rs.2,06,595/-. Accused, with a view to discharge his liability, issued cheque bearing No. 932780 on 10.12.2008 in the name of complainant, amounting to Rs.2,06,000/-. However, fact remains that on presentation, said cheque was returned due to ?insufficient funds? in the account of the accused. 3. After having received aforesaid memo from the bank concerned, complainant served accused with legal notice calling upon him to make good the payment within the prescribed period but since accused failed to make good the payment within prescribed period, complainant was compelled to file complaint under S.138 of the Act in the competent Court of law. 4. Subsequently, vide judgment dated 9.10.2015, learned trial Court held the accused guilty of having committed offence punishable under S.138 of the Act and convicted and sentenced him as per description given above. Aggrieved by the same, accused moved the court of learned Additional Sessions Judge by way of appeal under S.374 CrPC, which was dismissed vide judgment dated 2.1.2019 as a consequence of which, judgment of conviction and sentence passed by learned trial Court came to be upheld. 5. Vide order dated 1.4.2019, this Court, while issuing notice to the complainant, suspended substantive sentence imposed by learned trial Court subject to deposit of Rs.50,000/- within six weeks. Pursuant to aforesaid order, a sum of Rs.1,70,000/- has been deposited with the learned trial Court. During the pendency of the case learned counsel for the parties informed that the parties are in the process of settling their dispute amicably inter se them and as such, on 31.7.2019, this Court summoned both the parties to the court. Learned counsel representing the parties fairly stated that as per amicable settlement arrived inter se parties, they have resolved to settle their dispute amicably inter se them for a sum of Rs.2,70,000/-. Sum of Rs.1,70,000/- stands deposited with the learned trial Court whereas Rs.1.00 Lakh has been handed over to the complainant in the Court itself. 6. Learned counsel representing the parties fairly stated that as per amicable settlement arrived inter se parties, they have resolved to settle their dispute amicably inter se them for a sum of Rs.2,70,000/-. Sum of Rs.1,70,000/- stands deposited with the learned trial Court whereas Rs.1.00 Lakh has been handed over to the complainant in the Court itself. 6. Complainant, who is present in Court, stated on oath that he of his own volition and without there being any external pressure has compromised the matter with the accused for Rs.2,70,000/- and he has already received Rs.1.00 Lakh today in the Court and in case amount of Rs.1,70,000/- lying deposited with the learned trial Court is ordered to be released in his favour, he shall have no objection in case, judgments/order of conviction and sentence passed by both the learned Courts below are quashed and set aside and accused is acquitted of the charge framed against him under S.138 of the Act. His statement is taken on record. 7. Having heard learned counsel for the parties and perused the material available on record, this Court sees no impediment in accepting the prayer made in the instant petition in terms of guidelines laid down by Hon'ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663 ,. Needless to say, Hon'ble Apex Court in judgment (supra) has categorically held that power under S.147 of the Act ibid can be exercised even in those cases, where accused stands convicted. 8. Consequently, in view of the law laid down by Hon'ble Apex Court in Damodar S. Prabhu (supra), present petition is allowed. Impugned judgments/order of conviction and sentence passed by both the learned Courts below are quashed and set aside. Petitioner is acquitted of the offence punishable under S.138 of the Act ibid. Bails bonds furnished by him are discharged. 9. Learned trial Court is directed to release the amount deposited by the accused with it, in his favour, on his making a formal application in this regard. 10. The petition is disposed of in aforesaid terms, alongwith all pending applications, if any. Copy Dasti.