Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 80 (HP)

Manohar Singh v. Shiv Dev Singh

2019-01-08

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Instant Cr. Revision petition filed under S.397 CrPC is directed against judgment dated 28.2.2018 passed by the learned Sessions Judge, Shimla, HP in Cr. Appeal No. 38-S/10 of 2016, affirming the judgment/order of conviction dated 9/15.10.2015 passed by the learned Judicial Magistrate 1st Class (3), Shimla, HP, in Complaint No. 188-3 of 2015/12 titled Shiv Dev Singh versus Manohar singh, whereby learned Court below, while holding petitioner-accused (hereinafter, 'accused') guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter, 'Act'), convicted and sentenced him to undergo simple imprisonment for a period of six months and to pay compensation of Rs.1,20,000/-. 2. Facts, as emerges from the record are that the respondent-complainant (hereinafter, 'complainant') filed a complaint under S.138 of the Negotiable Instruments Act (hereinafter, 'Act') in the court of learned Judicial Magistrate 1st Class (3), Shimla, Himachal Pradesh, averring therein that the petitioner-accused (hereinafter, 'accused') intended to sell some land owned by him but since he was in need of money, complainant agreed to purchase the land, description whereof is given in the judgment passed by the learned Courts below, for a total sale consideration of Rs.8,40,000/- and paid a sum of Rs.1,00,000/- to the accused, as advance money on 11.8.2010. Accused promised to clear the loan amount within a period of six months and agreed to execute sale deed within a period of six months from the date of agreement. However, the fact remains that the accused did not contact the complainant in order to execute the sale deed within the period of six months. After expiry of six months, accused handed over a cheque bearing No. 218497 amounting to Rs.1,10,000/- in favour of the complainant. However, fact remains that the aforesaid cheque, on presentation, was dishonoured on account of "insufficient funds". Complainant, after having received memo from the concerned Bank, served the accused with the legal notice calling upon him to make the payment within the stipulated period, but, since accused failed to make payment, within the stipulated period, complainant was compelled to initiate proceedings under S.138 of the Act against the accused, in the competent Court of law. 3. Learned Judicial Magistrate 1st Class (3), Shimla, vide judgment/order dated 9/15.10.2015, held accused guilty of having committed offence punishable under S.138 of the Act and accordingly, convicted and sentenced him as per description given hereinabove. 3. Learned Judicial Magistrate 1st Class (3), Shimla, vide judgment/order dated 9/15.10.2015, held accused guilty of having committed offence punishable under S.138 of the Act and accordingly, convicted and sentenced him as per description given hereinabove. Being aggrieved and dissatisfied with the judgment/order of conviction passed by the learned trial Court, accused preferred an appeal before the learned Sessions Judge, Shimla, However, the fact remains that the same was dismissed by the learned Sessions Judge, vide judgment dated 28.2.2018, as a consequence of which, judgment/order of conviction passed by the learned trial Court came to be upheld. In the aforesaid background, accused approached this court in the instant proceedings, praying therein for his acquittal after setting aside the judgments/order of conviction passed by the learned Courts below. 4. During the proceedings of the case, matter came to be referred to the learned trained Mediator, Shri S.C. Sharma, Advocate, for amicable settlement inter se parties, on the joint request having been made by the learned counsel representing the parties. It is heartening to note that with the great efforts put in by Mr. S.C. Sharma, learned Advocate, (trained Mediator), parties have been able to resolve their dispute amicably inter se them. 5. Careful perusal of order dated 11.12.2018 passed by the learned Mediator suggests that both the parties, vide separate statements recoded before the learned Mediator, resolved to compromise the matter for a sum of Rs.1,10,000/- instead of Rs.1,20,000/-, as awarded by the learned trial Court, while holding accused guilty of having committed offence punishable under S.138 of the Act. Record of the mediation as well as statements having been made by the parties are made part of the file. 6. Mr. Parmod Thakur, learned counsel representing the accused, while referring to the settlement arrived inter se parties before the learned Mediator, contended that in view of the compromise arrived inter se parties, this court, while exercising power under S.147 of the Act as well as guidelines laid down in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 , may proceed to compound the offence. 7. Ms. 7. Ms. Abhilasha Kaundal, learned counsel representing the respondent-complainant, while fairly acknowledging the factum with regard to compromise arrived inter se parties, contended that the complainant has no objection in case judgments of conviction recorded by learned Courts below, are quashed and set aside and accused is acquitted of the charges framed against him. She further contended that that amount of Rs.1,10,000/- lying deposited with the trial court may be ordered to be released in favour of the complainant. 8. Consequently, in view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court (supra), impugned judgments/order of conviction and sentence passed by both the learned Courts below are set-aside and the petitioner-accused is acquitted of the charges framed against him. Bail bonds, if any, furnished by the petitioner are discharged. Learned trial Court is directed to release the amount of Rs.1,10,000/- lying deposited with it, in favour of complainant, on his making application in this regard, forthwith. Further, the sum of Rs.10,000/- be released in favour of the accused, on his making appropriate application in this regard. 9. Before parting with the judgment, this court wishes to place on record appreciation for the sincere efforts put in by Mr. S.C. Sharma, Advocate, with whose intervention, parties were able to settle their disputes amicably. 10. The petition is disposed of in aforesaid terms, alongwith all pending applications, if any.