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2020 DIGILAW 154 (HP)

Kamal Dev v. Ravinder Kumar

2020-02-17

ANOOP CHITKARA

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JUDGMENT Anoop Chitkara, Vacation J. - Cr.MP(M) No.160/2020 Heard. I have gone through the contents of the application and I am satisfied that delay of 243 days in filing the revision is bonafide. As such, application is allowed and the delay in filing the revision, is condoned. The application stands disposed of. Revision be registered. Cr. Revision No._____89___/2020 2. Challenging the judgment of conviction passed by the learned Sessions Judge, Hamirpur, H.P. in Criminal Appeal No. 28 of 2015 dated 1.6.2019, whereby the first Appellate Court had affirmed the judgment of conviction passed by learned Chief Judicial Magistrate, Hamirpur, H.P. in complaint No. 40-1-2010 dated 22.6.2015, under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act), the petitioner has come up in this Court for invoking the revisionary jurisdiction under Section 397 read with Section 401 of the Code of Criminal Procedure. 3. The facts of the case apposite to decide the present petition are that the accused issued a cheque in favour of complainant having No.128323 dated 2.2.2010 for Rs.2,50,000/- drawn on State Bank of Patiala, Hamirpur from his Bank Account No.55126072033 in lieu of debt taken by him from the complainant. Complainant presented this cheque for encashment. Cheque however got dishonoured due to insufficient funds in the account of accused person. The complainant issued the requisite notice to make up the deficiency of funds, but despite that the petitioner did not make the payment. Accordingly, the aforesaid complaint was filed by the complainant. The Trial Court convicted the accused under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for one year and ordered to pay compensation amount of Rs. 3,20,000/- under Section 357 (3) of Cr.P.C. 4. The Appellate Court upheld the conviction and now the convict has come up with the present Criminal Revision. On 23.1.2020, statement of Shri Ravinder Kumar, son of original complainant, Shri Ramesh Chand, was recorded, who stated that the entire matter stands compromised with the accused. In terms of the compromise, the accused has deposited an amount of Rs.2,50,000/- in the trial Court and further stated that he has no objection, if the matter is compounded. 5. Learned Counsel appearing for the petitioner, submits that since entire amount as per compromise has been paid, as such, matter be compounded. 6. In terms of the compromise, the accused has deposited an amount of Rs.2,50,000/- in the trial Court and further stated that he has no objection, if the matter is compounded. 5. Learned Counsel appearing for the petitioner, submits that since entire amount as per compromise has been paid, as such, matter be compounded. 6. Therefore, in my considered view, the offence is ordered to be compounded and all proceedings are quashed on the following grounds:- I The jurisprudence behind the N.I. Act is that the business transactions are honoured. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are simply to execute the recovery of cheque amount by showing teeth of penalty laws. II This Court has inherent powers under Section 482 of the Code of Criminal Procedure which are further supported by Section 147 of the N.I. Act to interfere in this kind of matter where parties have paid the entire money and where the complainant does not object to clear all the proceedings. 7. In view of the entirety of the facts of the case, as well as judicial precedents, a few of which have been mentioned hereinabove, I am of the considered opinion that continuation of these proceedings will not suffice any fruitful purpose whatsoever. Therefore, I am of the considered opinion that in view of the compromise, this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure read with 147 of Negotiable Instruments Act , is invoked to compound the offence and consequently to quash the above mentioned FIR and consequent proceedings. 8. In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639 , at p 642, Honble Supreme Court observed as follows: 'The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion.' 9. Consequently, in view of compounding of offences, the judgment dated 1.6.2019, passed in Criminal Appeal No.28 of 2015, titled as Kamal Dev vs. Ravinder Kumar and another , pronounced by learned Sessions Judge, Hamirpur, Himachal Pradesh, whereby he upheld the judgment passed by learned Chief Judicial Magistrate, Hamirpur, District Hamirpur, H.P., in Criminal Case No.40-1-2010, titled as Ramesh Chand vs. Kamal Dev, convicting and sentencing the petitioner, are set aside and quashed. Consequently, the petitioner is acquitted of the offence under Section 138 of the Act. The bail bonds are accordingly discharged. 10. This compounding is subject to the convict/accused depositing 15% of the cheque amount, in terms of the judgment passed by a Larger Bench of Honble Supreme Court in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663 , whereby following law for compounding of offences punishable under Negotiable Instruments Act, 1881 was laid down: '.21THE GUIDELINES (i) In the circumstances, it is proposed as follows : (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. (d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority." 11. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority." 11. The amount of cheque in question was Rs.2,50,000/-, 15% of which, comes out to be Rs.37,500/-. The petitioner shall deposit this amount, on or before 31.3.2020, failing which, this order of compounding shall automatically stand canceled and the revision petition shall be posted for hearing on merits. However, in extraordinary circumstances, the petitioner may approach this Court for extension of time to deposit the compounding fee. 12. The learned trial Court shall release all the amount deposited in this case, if any, alongwith interest in favour of the respondent, in his bank account in the manner, as desired by him immediately on production of certified copy of this judgment, Accordingly petition stands disposed of. All pending application(s), if any, also stand disposed of.