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2022 DIGILAW 631 (MP)

Ramasre Vishwakarma v. Aatmaram Diwakar

2022-04-20

ANJULI PALO

body2022
ORDER 1. In this criminal revision under section 397 read with section 401 of the Code of Criminal Procecure the applicant/accused has challenged the judgment of conviction and order of sentence passed by the 4th Additional Sessions Judge, Bhopal in Criminal Appeal No.726/2018 on 30.7.2021 whereby he has affirmed the judgment of conviction passed by the Judicial Magistrate First Class, Bhopal against the appilcant for offence under section 138 of the Negotiable Instruments Act and order of sentence to undergo R.I. for 6 months and to pay compensation of Rs.1,90,500/- under section 357(3) of Cr.P.C. 2. The facts in brief are that applicant/accused and respondent/complainant are familiar with each other. In April, 2015 the wife of applicant, namely, Smt.Radhika Vishwakarma requested respondent to grant loan of Rs.3,51,400/- to meet out her personal expenses. On the basis of familarity the complainant gave the aforesaid amount to wife of applicant/accused as loan. When the complainant made demand for repayment of loan amount, the applicant/accused gave cheque bearing No.363407 dated 6.11.2015 of Central Bank of India amounting to Rs.1,50,000/- with an assurance that if complainant lodges the said cheque, it will be honourned. 3. The respondent/complainant lodged the aforesaid cheque with his banker on 30.11.2015. However, the same was dishonoured on 1.12.2015 with an endorsement "Insufficient balance". Thereafter, the respondent/complaint sent notice dated 15.12.2015, but the applicant/accused neither repaid the loan amount nor gave reply to notice. Hence, the respondent/complainant filed complaint under section 138 of the Negotiable Instruments Act. 4. The trial Court by its judgment dated 6.10.2018 held the applicant/accused guilty of offence under section 138 of Negotiable Instruments Act and sentenced to undergo R.I. for 6 months and to pay compensation of Rs.1,90,500/- u/s 357(3) of Cr.P.C. and in default of amount of compensation to undergo further S.I. for 2 months. 5. Being aggrieved by the judgment of conviction and order of sentence passed by trial Court the applicant preferred an appeal before the Fourth Additional Sessions Judge, Bhopal in Criminal Appeal No.726/2018. The lower appellate Court dismissed the appeal and affirmed the judgment and sentence of the trial Court vide impugned judgment dated 30.7.2021. 6. The applicant being dissatisfied with the impugned judgment dated 30.7.2021 passed by the lower appellate Court preferred this instant appeal on various grounds mentioned therein. In the memo of revision it is mentioned that applicant is in jail since 6.2.2022. 6. The applicant being dissatisfied with the impugned judgment dated 30.7.2021 passed by the lower appellate Court preferred this instant appeal on various grounds mentioned therein. In the memo of revision it is mentioned that applicant is in jail since 6.2.2022. During pendency of this criminal revision on 9.3.2022 a joint application has been filed by learned counsel for the parties under section 147 of the Negotiable Instruments Act read with section 482 of the Code of Criminal Procedure, which has been registered as I.A.No.4505/2022. This interlocutory appilcation is supported by affidavit of Ajay Vishwakarma who is son of applicant as also the affidavit of complainant. It is averred in the application that during pendency of criminal appeal before the lower appellate Court the applicant had deposited Rs.50,125/- vide Document-A/1 and balance amount of Rs.150,500/- has been paid by the son of the applicant to the complainant on 5.3.2022 and acknowledgement receipt has been brought on record as Document-A 2. 7. On 10.3.2022 the learned counsel for the parties have made joint submission before this Court that parties have amicably entered into compromise and, therefore, they were directed to personally appear before the Registrar (Judicial-II) for verification of their compromise. In compliance of order of this Court though the applicant/revisionist did appear in person as he was in jail, however, his counsel Shri Arpan Shrivastava appeared before the Registrar Judicial-II for verification of their compromise. The complainant who has been identified by his counsel Shri Kapil Patwardhan appeared in person before the Registrar (Judicial-II). The Registrar (Judicial-II) submitted his report dt.10.3.2022 stating that complainant has voluntarily entered into compromise without any force, compulsion, duress, undue influence or threat. The complainant also stated that he has no objection if the applicant/revisionist is acquitted in the light of compromise in question. However, the Registrar (Judicial-II) has pointed out that in view of decisions in the case of Damodardas S. Prabhu u. Sayed Babalal H, (2010) 5 SCC 663 and M.P. State Legal Services Authority v. Prateek Jain and others, (2014) 10 SCC 690 the applicant/revisionist is required to deposit 15% of the cheque amount as costs with the State Legal Servics Authority. 8. Thereafter, on 12.4.2022 the learned counsel for the applicant in view of report of Registrar Judicial-II dt. 8. Thereafter, on 12.4.2022 the learned counsel for the applicant in view of report of Registrar Judicial-II dt. 10.3.2022 made an oral prayer before this Court that parties may be allowed to compound the offence in view of compromise and he undertakes to deposit the compounding fee with the State Legal Services Authority. 9. Accordingly, it is directed subject to applicant's depositing compounding fee of 15% of cheque amount (Rs.1,50,000/-) i.e. Rs.22,500/- [Rupees Twenty Two Thousand Five Hundred only] before the State Legal Services Authority, Jabalpur within 15 days from the date of receipt of copy of this order, the prayer of parties for compounding be treated to have been allowed, impugned judgment dated 30.7.2021 be treated to be set aside and the applicant be treated to be acquitted from the charge under section 138 of the Negotiable Instruments Act. 10. Accordingly, the revision is allowed subject to above condition.