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2019 DIGILAW 208 (HP)

Prem Verma v. Shiv Shakti Iron Store

2019-02-28

SANDEEP SHARMA

body2019
JUDGMENT Sandeep Sharma, J. (Oral) - Instant Criminal Revision petition filed under Sections 397 & 401 of the Code of Criminal Procedure , is directed against the judgment, dated 31.05.2017, passed by learned Additional Sessions Judge, Kullu, District Kullu, H.P., in Criminal Appeal No. 28 of 2017, affirming the judgment of conviction and order of sentence dated 23.01.2017, passed by learned Additional Chief Judicial Magistrate, Kullu, District Kullu, H.P., in complaint No. 70- I/2013/942-I/2013(old),310-I/2016/12/310-III/2016/12 (new), 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 a period of six months and to pay compensation of Rs. 4,50,000/- to the complainant. 2. Briefly stated facts, as emerge from the record are that respondent (for short complainant) filed a complaint under Section 138 of the Negotiable Instruments Act ( for short Act) in the Court of learned Additional Chief Judicial Magistrate, Kullu, District Kullu, H.P., averring therein that he is proprietor of M/s Shiv Shakti Iron Store, VPO Patlikuhal, Tehsil Manali, District Kullu,H.P., and the accused purchased some articles/items amounting to Rs. 3,50,000/- from him. Subsequently, accused in order to discharge his liability, issued cheque bearing No.500602, amounting to Rs.3, 50,000/-, dated 25.01.2012, drawn on ICICI Bank Limited, Branch Kullu, District Kullu,H.P.,however, fact remains that on presentation, cheque in question was dishonoured due to "insufficient funds" in the account of the accused. Complainant after having received memo from the bank concerned served accused with legal notice calling upon him to make the payment good within 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 23.01.2017 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 23.01.2017 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 in the Court of learned Additional Sessions Judge, Kullu, which also came to be dismissed vide judgment dated 31.3.2017, 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. This Court vide order dated 1.9.2017, suspended the substantive sentence imposed by the learned trial Court below, subject to the petitioners depositing the entire compensation amount and furnishing personal bond in the sum of Rs.10,000/- with one surety in the like amount, but since accused failed to do the needful well within stipulated time, interim protection granted by this court vide order dated 1.9.2017 came to be vacated. 6. Today, during the proceedings of the case, petitioner-accused filed an application bearing Cr.MP No.285 of 2019, praying therein to compound the offence on the basis of the compromise arrived inter se parties. Alongwith the aforesaid application, petitioner-accused has also filed copy of compromise deed (Annexure A-1). Though, application has been filed under Section 320 Cr.P.C , but Mr. T.S.Chauhan, learned counsel representing the petitioner-accused stated that same may be read with Section 147 of the Act, and as such, on his request, he is permitted to carry out necessary correction in the court case file. 7. Averments contained in the application suggest that during the pendency of the present petition, matter stands compromised inter se parties vide compromise dated 26.02.2019 ( available at page 49 of the paper book). Vide aforesaid compromise, petitioner issued two cheques i.e one amounting to Rs.4,00,000/- and one amounting to Rs.50,000/-. Otherwise also, entire amount as per agreement is/was required to be paid on or before 15.03.2019. 8. Mr. Naveen K. Bhardwaj, learned counsel representing the respondent, on instructions fairly admitted that one cheque amount to Rs. Vide aforesaid compromise, petitioner issued two cheques i.e one amounting to Rs.4,00,000/- and one amounting to Rs.50,000/-. Otherwise also, entire amount as per agreement is/was required to be paid on or before 15.03.2019. 8. Mr. Naveen K. Bhardwaj, learned counsel representing the respondent, on instructions fairly admitted that one cheque amount to Rs. 4,00,000/- stands encashed, whereas another cheque amounting to Rs.50,000/- is yet to be encashed. Since, substantial amount of Rs. 4, 00,000/- stands already received by the complainant, complainant -respondent has no objection in accepting the prayer for compounding the offence subject to the condition that in case cheque amounting to Rs. 50,000/- is not honoured, respondent-complainant shall be at liberty to get the petition revived. 9. Having heard learned counsel representing the parties and perused the material available on record, especially compromise deed Annexure A-1, this Court finds that parties have settled their dispute amicably inter se them and as such, there appears to be no impediment in accepting the prayer made on behalf of the petitioner- accused for compounding the offence,especially in view of the fair stand taken by the learned counsel representing the respondent, and as such, 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 Honble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. (2010)5 SCC 663 . 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. However, it is made clear that in case cheque amounting to Rs.50,000/- is not honoured, petitioner-accused shall render himself liable to serve the sentence imposed by the learned court below as well as contempt of Court, besides above, respondent-complainant shall be at liberty to approach this Court, praying therein for revival of the present petition, so that appropriate proceedings are initiated against the petitioner-accused. Since the petitioner- accused is in judicial custody at Centre Jail, Nahan, Registry is directed to prepare and send the release warrants forthwith through Fax/email. The petition is disposed of along with pending applications, if any.