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Himachal Pradesh High Court · body

2023 DIGILAW 76 (HP)

Rattan Singh v. Shamshad Ali

2023-02-02

SUSHIL KUKREJA

body2023
JUDGMENT : SUSHIL KUKREJA, J. By way of instant petition filed under Section 482 of the Code of Criminal Procedure, the petitioner, who has been convicted and sentenced for committing offence under Section 138 of the Negotiable Instruments Act, 1981 (hereinafter referred to as “the Act”), in Criminal Case No. 270/2017, is seeking compounding of offence on the basis of compromise arrived inter se parties. 2. Brief facts of the case are that complainant/respondent No. 1 filed a complaint under Section 138 of the Act against the accused/petitioner, alleging therein that in January, 2017, the accused entered into an agreement with the complainant to purchase Tata Indigo Car bearing registration No. HP17C5207. The Accused also agreed to pay balance installments alongwith over dues amounting to Rs. 2,25,000/, which was financed by Shri Ram City Union Finance Ltd. with a view to discharge his aforesaid liability. The accused issued a post dated cheque bearing No. 084434 dated 11.05.2017, for a sum of Rs. 2,00,000/drawn at Union Bank of India, Paonta Sahib in favour of the complainant. However, the said cheque on its presentation in the bank was dishonoured on account of insufficient funds. After receipt of memo from the concerned bank, the complainant served accused with a legal notice calling upon him to make the payment. Since the accused failed to make payment within he time period stipulated in the legal notice, complainant was compelled to file proceedings under Section 138 of the Act. 3. Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 20.05.2019, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and convicted and sentenced him to undergo simple imprisonment for two years and pay compensation to the tune of Rs. 2,24,000/to the respondent/complainant and in default of payment of fine to further undergo simple imprisonment for a period of one month. 4. Being aggrieved and dissatisfied with the aforesaid judgment/order of conviction/sentence passed by the learned trial Court, accused preferred an appeal in the Court of learned Additional Sessions Judge, Sirmaur District at Nahan, H.P. (Camp at Paonta Sahib), which was dismissed vide judgment dated 12.03.2020. The petitioner/accused further laid challenge to the aforesaid judgment before this Court in Cr. Revision No. 163 of 2020, which was also dismissed by this Court vide judgment dated 15.11.2021. 5. The petitioner/accused further laid challenge to the aforesaid judgment before this Court in Cr. Revision No. 163 of 2020, which was also dismissed by this Court vide judgment dated 15.11.2021. 5. After passing of judgment dated 15.11.2021 by this Court, thereby dismissing the criminal revision petition filed by the petitioner-accused, parties have entered into compromise and the petitioner-accused had paid the entire amount of compensation to the respondent-complainant. Therefore, in this background, the petitioner has approached this court in the instant proceedings filed under Section 482 of the Code of Criminal Procedure, praying therein for compounding of offence. 6. Learned counsel for respondent No. 1 in reply to the petition has specifically stated that the matter stands amicably settled between the petitioner vide Compromise Deed (Annexure P4) and respondent No. 1 has no objection in case the offence committed by the petitioner under Section 138 of the Act is compounded and the judgment of conviction and order of sentence passed by the learned trial Court is quashed and set aside. 7. Even though the parties have amicably settled their dispute, as is evident from the Compromise Deed (Annexure P4) placed on record, however the question which arises for consideration before this Court is as to whether this Court can proceed to compound the offence, after dismissal of criminal revision petition filed by the petitioner accused vide judgment dated 15.11.2021 and by upholding the judgment of conviction and order of sentence recorded by the learned trial Court. 8. While relying upon the judgment of Hon'ble Apex Court as well as other Constitutional Courts, a coordinate Bench of this Court vide judgment passed in Cr. MP No. 1197 of 2017 in Cr. Revision No. 394 of 2015 titled Gulab Singh Vs. Vidya Sagar Sharma, has held that the 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 aforesaid judgment 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. 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 versus State of Rajasthan & another, Criminal Misc. Application No.371 of 2016 in Criminal Revision Petition No.1267 of 2016, to suggest 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 hereinbelow: “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 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. 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 reported in (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. In a similar situation, in K. Subramanian Vs. R. Rajathi; (2010) 15 Supreme Court Cases 352, it has been held by the Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.PC, compromise arrived at can be accepted even after recording of the judgment of conviction. The relevant portion of the judgment is reproduced 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 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.” 10. Since in the instant case, petitioner after being convicted under Section 138 of the Act has compromised the matter with respondent No. 1complainant vide Compromise Deed (Annexure P4) and in terms thereof has already paid the entire amount of compensation, prayer for compounding the offence can be accepted in terms of the aforesaid judgment passed by the Hon’ble Apex Court. 11. Therefore, in view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, parties are permitted to get the matter compounded in light of the compromise arrived inter se them. 12. Accordingly, judgment of conviction and order of sentence passed by the learned trial Court are quashed and setaside and the petitioner/accused is acquitted of the charge framed against him. His bail bonds are discharged. 13. The petition is disposed of alongwith pending applications, if any.