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2019 DIGILAW 596 (HP)

SUNIL KUMAR v. NARAYAN DASS

2019-05-17

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. 1. The instant petition stands instituted at the instance of the petitioner herein under Section 397 read with Section 401 of the Code of Criminal Procedure and is directed against the judgment of conviction recorded by the learned Sessions Judge, Shimla, in Cr. Appeal No. 74-s/10 of 2014, whereby he affirmed the conviction recorded by the learned Additional Chief Judicial Magistrate, Court No. 2, Shimla, District Shimla, H.P., on 2.8.2014/27.8.2014, in case No. 1853-3 of 2014/12, upon the accused/petitioner, for his committing an offence punishable under Section 138 of the Negotiable Instruments Act besides affirmed the imposition upon the petitioner/accused by the learned trial Court, of sentence of simple imprisonment, for a period of six months, besides, vis- -vis, his being liable to pay compensation comprised, in a sum, of Rs. 3,70,000/- 2. During the pendency of the instant revision petition before this Court, the learned counsel appearing for the contesting parties, have hereat made a joint prayer qua this Court proceeding to record, an order for compounding the offence constituted by the dishonour of negotiable instrument, as, issued by the petitioner/accused, vis-a-vis, the respondent-complainant. 3. The respondent/complainant, has, in his signatured statement, rendered on oath, made a disclosure therein, of the entire liabilities arising out of dishonour of negotiable instrument rather standing liquidated vis- -vis him, by the petitioner/accused. He makes a prayer in his signatured statement, that in case a sum of Rs. 2,70,000/-, lying deposited before the Registry of this Court, and a sum of Rs. 1,00,000/- lying deposited before the trial Court, is are ordered to be released in his favour, thereupon this Court may proceed to record an order, for compounding the offence arising out of dishonour of negotiable instrument. The aforesaid statement rendered by the respondent, is accepted, by the learned counsel appearing for the petitioner/convict. 4. Cumulatively, this Court is constrained, to order for composition of the offence arising from dishonour of negotiable instrument. In sequel, the revision petition is accepted. The judgments impugned before this Court are quashed and set aside. The accused/petitioner is acquitted of the charge framed against him. The Registry is directed to release a sum of Rs. 2,70,000/- , deposited, therebefore, and also, the learned trial Court is directed to release a sum of Rs. In sequel, the revision petition is accepted. The judgments impugned before this Court are quashed and set aside. The accused/petitioner is acquitted of the charge framed against him. The Registry is directed to release a sum of Rs. 2,70,000/- , deposited, therebefore, and also, the learned trial Court is directed to release a sum of Rs. 1,00,000/- deposited therebefore, by the petitioner/convict, vis-a-vis, the respondent/complainant, by both remitting it/them, in his saving bank account, against proper receipt and identification. 5. Though, it is imperative for this Court, to as a condition precedent, for recording a binding order, for composition of offence(s) arising out, of, dishonour of Negotiable Instruments Act, hence impose upon the convict, penalty equivalent to 15%, of, the amount, hence comprised in the dishonoured negotiable instrument(s). However, given the petitioner/accused working as Welder, and, his therefrom, deriving an income not exceeding Rs. 20,000/- hence the levying, of, 15% of, the requisite penalty, vis-a-vis, the amount comprised, in the cheque, is not being insisted, to be made, upon the petitioner/convict, as a pre- condition, for making an order for compounding the offence, arising from negotiable instrument Act. Since, the learned counsel for the respondent submits that the afore rendered statement, at the bar, by the learned counsel, for the petitioner is meritworthy, consequently, the afore prayer is accepted, in part only, and, the petitioner/convict, is, directed to pay 7% of the cheque amount, within six weeks, before the State Legal Service Authority, as a pre-condition, for hence making the extant order, for compounding the offence, arising out of negotiable instrument, rather effective. (i) thereupon in consonance, with, the mandate of Apex Court, occurring in a judgment titled as Madhya Pradesh State Legal Services Authority versus Prateek Jain and another, (2014) 10 SCC 690 , wherein the Hon'ble Apex Court, has, on evident display, of, indigent circumstances, besetting the convict, permitted High Courts, to exempt/waive imposition, of penalty, in a sum quantified, at, 15% of the amount constituted, in the, dishonoured Negotiable Instrument, (ii) thereupon this Court also affords the apposite reduced exemption, vis-a-vis, the petitioner. Consequently, with, evident display, of indigent circumstances hence besetting the accused, this Court is constrained, to impose upon him, penalty quantified, at, 7% of the sum(s) comprised, in the dishonoured negotiable instrument. 6. In view of the above directions, the instant petition as well as all pending application(s), if any, are disposed of.