Research › Search › Judgment

Himachal Pradesh High Court · body

2023 DIGILAW 15 (HP)

Suresh Kumar v. Jeevan Kumar

2023-01-04

SANDEEP SHARMA

body2023
JUDGMENT : SANDEEP SHARMA, J. 1. By way of instant application filed under Section 482 Cr.P.C. read with Section 147 of the Negotiable Instruments Act (for short ‘Act’) prayer has been made by the applicant-accused for recalling of judgment dated 4.8.2022 passed by this Court in Cr. R. No. 34 of 2022, whereby this Court upheld the judgment dated 4.1.2021 passed by the learned Sessions Judge, Chamba, District Chamba, H.P. in Criminal Appeal No. 52 of 2019, affirming the judgment of conviction and order of sentence dated 16.11.2019, passed by the learned CJM Chamba, District Chamba, H.P. in criminal complaint No. 283 of 2018, whereby learned trial Court while holding petitioner-accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 1,50,000/- to the complainant. 2. Precisely, the facts of the case as emerge from the record are that respondent No. 1/complainant (for short ‘complainant’) filed a complaint under Section 138 of the Negotiable Instruments Act (for short ‘Act’) in the competent court of law, alleging therein that he lent sum of Rs. 1,50,000/- to the accused on his request to meet his domestic needs. He alleged that accused with a view to discharge his liability, issued cheque bearing No. 934603 amounting to Rs. 1,50,000/- drawn on State Bank of India, Parel against his account No. 31453016991 Chamba, but fact remains that aforesaid cheque on its presentation was dishonoured on account of insufficient funds in the account of the accused. Since, despite having received demand notice accused failed to make the payment good within the time stipulated in the legal notice, complainant was compelled to initiate proceedings under Section 138 of the Act, in the competent court of law. 3. Learned trial Court on the basis of the evidence adduced on record by the respective parties, held accused guilty of having committed the offence punishable under Section 138 of the Act, and accordingly convicted and sentenced him as per the description given hereinabove. 4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial court, present petitioner-accused preferred an appeal in the Court of learned Sessions Judge, Chamba, District Chamba, H.P. but same was also dismissed vide judgment dated 4.01.2021. 4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned trial court, present petitioner-accused preferred an appeal in the Court of learned Sessions Judge, Chamba, District Chamba, H.P. but same was also dismissed vide judgment dated 4.01.2021. Being aggrieved and dissatisfied with the aforesaid judgment passed by learned Sessions Judge, Chamba, District Chamba, H.P. applicant-accused preferred criminal revision No. 34 of 2022 in this Court, which also came to be dismissed vide judgment dated 4.8.2022. 5. Since after passing of aforesaid judgment dated 4.8.2022, applicant-accused compromised the matter with the respondent/complainant, whereby entire amount of compensation has been paid to the respondent-complainant, applicant-accused has approached this Court in the instant application filed under Section 482 Cr.P.C. praying therein for compounding of the offence under Section 147 of the Act. 6. Today the complainant Mr. Jeevan Kumar, who is being represented by Ms. Meera Devi, Advocate, has come present and states that he of his own volition and without there being any external pressure has entered into compromise with the petitioner whereby both the parties have agreed to settle the dispute between themselves amicably. He states that since he has received the entire sum from the accused, he shall have no objection in case the impugned judgments of conviction and sentence are quashed and petitioner is acquitted of the charges framed against him. 7. Though, factum with regard to compromise and receipt of entire amount of compensation stands duly acknowledged with the statement of respondent complainant Jeevan Kumar but while considering the prayer made in the application, the question which needs to be decided at first instance is that “whether after upholding the judgment of conviction and order of sentence passed by learned court below, this Court can proceed to compound the offence or not?” 8. This Court vide judgment passed in Cr. M.P. No. 1197 of 2017 in Cr. Revision No. 394 of 2015 titled Gulab Singh vs. Vidya Sagar Sharma, while relying upon judgment of Hon'ble Apex Court as well as other Constitutional Courts has already held that court, while exercising power under Section 147 of Act can proceed to compound offence even in those cases, where accused stands convicted. Relevant portion of the order passed by this court in order supra is reproduced as under: “8. Relevant portion of the order passed by this court in order supra is reproduced as under: “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. 394 of 2015, wherein judgment of conviction recorded by both the Courts below came to be upheld. 9. Mr. Manohar Lal Sharma, learned counsel representing the petitioner, has invited attention of this Court to the judgment passed by Hon’ble High Court of Rajasthan in Naresh Kumar Sharma vs. State of Rajasthan and Another, Criminal Misc. Application No. 371 of 2016 in Criminal Revision Petition No. 1267 of 2016, to suggests 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. At this stage, it would be profitable to reproduce the judgment passed by Hon’ble High Court of Rajasthan herein-below: “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. 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 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, (2010) 15 SCC 352 and order dated 7.7.2015 passed by a Single Bench of Hon’ble 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 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.” 9. 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. 10. 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. 10. The Hon’ble Apex Court in K. Subramanian vs. R. Rajathi, (2010) 15 SCC 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.” 11. 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.” 11. 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. Hon’ble Apex Court in Damodar S. Prabhu vs. Sayed Babalal H. (2010) 5 SCC 663 , has categorically held that offence punishable under Section 138 of the Negotiable Instruments Act can be compounded after recording of conviction, hence this court while exercising power under Section 482 Cr.P.C. read with Section 147 of the Act, can proceed to compound the offence alleged to have been committed by the petitioner and set-aside judgment of conviction recorded by the courts below. 12. Consequently in view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, this Court holds that present application, after dismissal of criminal revision petition, praying therein for recalling/modification of judgment dated 4.8.2022, passed by this Court in Criminal Revision No. 34 of 2022, is maintainable and as such, parties are permitted to get the matter compounded in the light of the compromise arrived inter se them. Accordingly, judgment of conviction and sentence recorded by the learned trial court is quashed and set-aside and petitioner is acquitted of the charge framed against him. Release warrants be prepared accordingly and sent through Fax/Email to the concerned Superintendent of Central Jail, immediately. The application is disposed of.