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2019 DIGILAW 581 (HP)

Jitender Kumar @ Lucky v. Rajan Chopra

2019-05-10

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. 1. By way of instant application filed under Section 482 of the Code of Criminal Procedure read with Section 147 of the Negotiable Instruments Act, prayer has been made on behalf of the petitioner/Accused/Applicant, for recalling judgment, dated 20.12.2018, passed by this Court, whereby judgment of conviction, dated 11.11.2016, passed by learned Judicial Magistrate, 1st Class, Manali, District Kullu, H.P., in Criminal complaint No.000214 of 2014, came to be upheld. 2. Respondent/ Non-applicant (for short the Complainant), who had advanced loan to the tune of Rs. Two lac to the petitioner/applicant/accused ( for short the Accused) on his request, was compelled to initiate proceedings under Section 138 of the Negotiable Instruments Act, ( for short the Act) for the realization of aforesaid amount because accused despite having received legal notice failed to make the payment good within stipulated period. Learned trial Court on the basis of the evidence adduced on record by the complainant, held accused guilty of having committed an offence punishable under Section 138 of the Act, and accordingly convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation to the tune of Rs. 2,50,000/ . 3. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned trial Court, accused -petitioner, preferred an appeal under Section 374 Cr.P.C, in the Court of learned Sessions Judge, Kullu, which came to be registered as Cr. Appeal No.17 of 2016. However, fact remains that same was dismissed, as a consequences of which, judgment of conviction recorded by the learned trial Court, came to be upheld. Subsequent to dismissal of the appeal having been preferred by the petitioner-accused in the Court of learned Sessions Judge, Criminal Revision No.282 of 2017, came to be instituted before this Court, praying therein for acquittal of accused-petitioner, after setting aside the judgment of conviction recorded by both the Courts below. 4. Since, parties to the lis failed to amicably settle the matter inter se the parties, despite sufficient opportunities having been afforded to them during the pendency of revision, this Court vide judgment dated 20.12.2018, proceeded to decide the case on merits and upheld the judgment of conviction recorded by the Courts below. 5. 4. Since, parties to the lis failed to amicably settle the matter inter se the parties, despite sufficient opportunities having been afforded to them during the pendency of revision, this Court vide judgment dated 20.12.2018, proceeded to decide the case on merits and upheld the judgment of conviction recorded by the Courts below. 5. After passing of aforesaid judgment dated 20.12.2018 by this Court, petitioner-accused entered into compromise with the complainant on 19th March, 2019, whereby he agreed to pay entire amount of compensation, as awarded by the learned court below. As per the compromise placed on record alongwith the application at hand, petitioner-accused paid a sum of Rs. 1, 25,000/ to the complainant through demand drafts bearing Nos. 935411 to 935413 of State Bank of India, Manali Branch and agreed that complainant shall be at liberty to withdraw a sum of Rs. 1, 25,000/ lying deposited with the learned trial Court i.e. Judicial Magistrate 1st Class, Manali. Since the parties entered into the compromise, p inter se rayer has been made by way of instant application to recall the judgment dated 20.12.2018, passed by this Court in Criminal Revision No.282 of 2017. 6. On the last date of hearing i.e. 5.4.2019, this Court having carefully perused the averments contained in the compromise placed on record, ordered that complainant shall remain present in Court on the next date of hearing, so that correctness and genuineness of the compromise allegedly arrived inter se parties is ascertained/verified. 7. Today, during the proceedings of the case, Mr. Ashok Kumar, Advocate has put in appearance on behalf of the respondent-complainant and stated that as per the instructions imparted to him by the complainant, matter stands compromised inter se parties and complainant has no objection in case the prayer made in the instant application for recalling the judgment dated 20.12.2018, is accepted and prayer for compounding the offence while exercising power under Section 147 may be accepted. He stated that due to unavoidable circumstances complainant was unable to come to this court, but he has definite instruction to compromise the matter on behalf of the complainant, who has otherwise received the entire amount in terms of the judgment passed by the learned trial Court. Their statements are taken on record. 8. He stated that due to unavoidable circumstances complainant was unable to come to this court, but he has definite instruction to compromise the matter on behalf of the complainant, who has otherwise received the entire amount in terms of the judgment passed by the learned trial Court. Their statements are taken on record. 8. Before acceding to aforesaid joint request having been made by learned counsel for the respective parties, moot question arise for determination of this Court is whether it has power to review/recall its own order/judgment passed in Criminal Revision No.282 of 2018, wherein judgment of conviction recorded by both the Courts below came to be upheld. 9. Mr. Amar Deep Singh, learned counsel representing the petitioner while placing reliance upon the judgment rendered by this Court in Criminal Revision No.394 of 2015, titled as Gulab Singh versus Vidya Sagar Sharma, Latest HLJ (2017) H.P. Suppl.753 as well as Hon’ble High Court of Rajasthan in Naresh Kumar Sharma versus State of Rajasthan and another, Criminal Misc. Application No.371 of 2016 in Criminal Revision Petition No.1267 of 2016, contended that in view of amicable settlement arrived inter se the parties, this Court has power to recall its judgment in the light of the provisions contained in Section 147 of the Act, which permits compounding of the offence under Section 138 of the Act. 10. At this stage, it would be profitable to reproduce the judgment passed by Hon’ble High Court of Rajasthan hereinbelow: "The accused-petitioner has field this criminal misc. application under section 482 Cr.P.C read with section 147 of Negotiable Instruments Act (for short the Act) with a prayer to review/recall the order dated 6.10.2016 passed by this Court in SB Criminal Revision Petition No.1267/2016 in the light of compromise dated 4.11.2016 subsequently entered between the parties and as a consequences thereof to acquit the accused-petitioner for the offence under Section 138 of N.I. Act. Vide order dated 6.10.2016, the aforesaid revision petition filed by the petitioner was dismissed by this Court while upholding and affirming the judgment and order of conviction and sentence passed by the trial Court as well as by the Appellate Court. Vide order dated 6.10.2016, the aforesaid revision petition filed by the petitioner was dismissed by this Court while upholding and affirming the judgment and order of conviction and sentence passed by the trial Court as well as by the Appellate Court. It was jointly submitted by the learned counsel for the parties that after the order dated 6.10.2016 the parties have amicably settled their dispute and entered into compromise and the amount in the dispute has been paid by the petitioner to the respondent-complainant. It was further submitted that although the revision petition has been dismissed by this Court on merits vide order dated 6.10.2016, but even then that order can be recalled in the light of provisions of Section 147 of N.I.Act which permits compound of the offence under Section 138 of the Act at any stage and the accused can be acquitted. In support of their submissions, they relied upon the case of K. Subramanian Vs. R.Rajathi reported in (2010) 15 SCC 352 and order dated 7.7.2015 passed by a Single Bench of Honble Gujarat High Court in S.B. Criminal Misc. Application (Recall) No.10232/2015 filed in Special Criminal Application No.3026/2014. On consideration of submissions jointly made on behalf of the respective parties and the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent complainant and the principles of law laid down in the aforesaid decisions, I find it a fit case in the criminal misc. application is to be inter se allowed and the order dated 6.10.2016 is to be recalled. Consequently, the criminal misc. application is allowed and the order dated 6.10.2016 is recalled and all the orders whereby the accused-petitioner was convicted and sentenced for the offence under Section 138 of N.I. Act are set aside and as a consequence thereof he is acquitted therefrom." 11. Reliance is also placed upon the judgment passed by Hon’ble Gujarat High Court, wherein similar application came to be filed for recalling the judgment passed by the Hon’ble High Court of Gujarat. Reliance is also placed upon the judgment passed by Hon’ble Gujarat High Court, wherein similar application came to be filed for recalling the judgment passed by the Hon’ble High Court of Gujarat. In the aforesaid judgment, Hon’ble Gujarat High Court, has reiterated that judgment passed by the High Court affirming the judgment of conviction recorded under Section 138 of the Act, can be recalled in view of the specific provisions contained in Section 147 of the Act, which provides for compounding of offence allegedly committed under Section 138 of the Act. 12. The Hon’ble Apex Court in K. Subramanian Vs. R.Rajathi; (2010)15 Supreme Court Cases 352, also in similar situation ordered for compounding of offence after recording of conviction by the courts below, wherein it has been held as under: "6. Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner has produced an affidavit sworn by him on 1.12.2008. The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs. 4,52,289 due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the petitioner. 7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.7.2008 and has undergone the sentence imposed on him by the trial Court and confirmed by the Sessions Court, the High Court as well as by this Court. The two affidavits sought to be produced by the petitioner as additional documents would indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of Rs.4,52,289. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings. 8. Having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code." 13. Having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code." 13. The Hon’ble Apex Court in the aforesaid judgment has categorically held that in view of the provisions contained under Section 147 of the Act, read with Section 320 of Cr.P.C, compromise arrived inter se the parties, can be accepted and offence committed under Section 138 of the Act, can be ordered to be compounded. 14. It is quite apparent from the aforesaid exposition of law laid down by this Court as well as Hon’ble High Court of Rajasthan that in view of the compromise arrived inter se parties that too in the proceedings under Section 138 of the Act, Court can proceed to compound the offence alleged to have been committed under Section 138 of the Act while exercising power under Section 147 of the Act . The Hon’ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663 has categorically held that power of compounding the offence under Section 147 of the Act can be exercised even after recording of the conviction by the Courts. 15. Consequently, in view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court as well as this Court, the present application is allowed and parties are permitted to get the matter compounded in the light of the compromise arrived inter se them. Accordingly, the judgments of conviction passed by learned courts below are quashed and set aside and judgment dated 20.12.2018, passed by this Court is recalled and the petitioner-accused is acquitted of the charge framed against him. His bail bonds are discharged. Needless to say, amount lying deposited with the learned trial Court shall be released forthwith in favour of the respondent-complainant on his making formal application.