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2019 DIGILAW 432 (HP)

JAI RAM BHATIA v. PADAM SINGH

2019-04-17

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. 1. On 08.04.2019, this Court passed the following order:- "Cr. Revision No. 113/2019 & Cr.MP No. 522/2019. Since the amount in question is too meager, therefore, I deem it proper not to issue notice to the opposite side. The petitioner is directed to deposit entire outstanding compensation amount by next date of hearing. List on 17.4.2019, when the petitioner shall remain present before this Court. In the meanwhile, the conviction and sentence as imposed upon the petitioner by the learned courts below is suspended. Copy dasti." 2. Today, when the case was taken up, the petitioner states that out of the total compensation amount of Rs.45,000/-, a sum of Rs.9,000/- already stood deposited before the learned trial Court and as regards the remaining amount of Rs.36,000/-, he may by permitted to deposit the same which permission was granted to him in the pre-lunch session and when the matter was taken up in the post lunch session, the petitioner showed a receipt regarding deposit of the aforesaid amount, which is taken on record. 3. On the basis of the deposit so made, the petitioner prayed that a quietus be given to the case by setting aside the conviction and sentence as imposed by the learned Courts below. 4. Now, the moot question is whether in absence of the complainant, such a course can be adopted. This question is no longer res integra in view of the judgment rendered by the Hon'ble Supreme Court in M/s. Meters and Instruments Private Limited and another versus Kanchan Mehta, (2017) AIR SC 4594 wherein after taking into consideration the entire law on the subject, the Hon'ble Supreme Court specifically held that even though compounding requires consent of both parties, however, in absence of such consent, the Court, in interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused, as is evident from para18 of the judgment which reads thus:- "18. From the above discussion following aspects emerge: i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". From the above discussion following aspects emerge: i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect. ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court. iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused. iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances." 5. Thus, taking into consideration all the attending facts and circumstances as also the law laid down by the Hon'ble Supreme Court in Kanchan Mehta's case (supra), I am of the view that for doing complete justice, the whole litigation should be given a quietus. 6. In view of the aforesaid, the amount lying in deposit in the Registry of this Court as well as before the learned trial Court is ordered to be released in favour of the complainant/respondent by remitting the same to his bank account. For this purpose, the complainant/respondent need not physically appear before this Court as well as before the learned Court below and it will be sufficient in case he sends such request for release of the amount by post to the learned trial Court as also to the Registrar General of this Court. Upon receipt of such request, the amount shall be released forthwith in favour of the complainant/respondent on furnishing his bank account or as is otherwise desired by him. 7. Accordingly, the revision petition is allowed and the conviction and sentence as imposed on the petitioner by the learned Judicial Magistrate Ist Class, Anni, District Kullu, H.P. on 25.06.2015 in Case No.14-3 of 2010 and as upheld by the learned Additional Sessions Judge, Kinnaur at Rampur Bushehar, District Shimla, on 29.01.2019, in Criminal Appeal No.39-R/10 of 2015, are set aside. Consequently, the petitioner is acquitted of the offence under Section 138 of the Negotiable Instruments Act. All pending applications also stand disposed of. 8. The Registry is directed to send a copy of this judgment to the respondent on the address as given in the memo of parties.