IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 13TH DAY OF OCTOBER, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
.
CRIMINAL REVISION NO. 414 OF 2019
Between:-
SH. RAM CHAND THAKUR S/O SH.
LACHHMUI RAM, R/O VILL. PANESH, PO
GHANAHATI, TEHSIL & DISTT. SHIMLA, H.P.
... PETITIONER
(BY MR. RAVINDER SINGH JASWAL,
ADVOCATE)
AND r
MS. NEELAM SHARMA D/O SH. RAM LAL
SHARMA R/O VILL. KUSHAH, PO NEHRAH,
TEHSIL & DISTT. SHIMLA, HP.
RESPONDENT
(BY MR. J.R. POSWAL, ADVOCATE)
Whether approved for reporting: .
This petition coming on for orders this day, the court passed the following:
O R D E R
By way of instant criminal revision petition filed under Section 397 of Cr.PC, challenge has been laid to judgment dated 9.9.2019 passed by learned Sessions Judge, Shimla in Criminal Appeal No. 46S/10 of 2018, affirming judgment of conviction/sentence dated 9.10.2018/11.10.2018, passed by learned Judicial Magistrate Ist Class, Court No.7 in case titled as Ms. Neelam Sharma Vs. Ram Chand, whereby learned court below while ::: Downloaded on - 14/10/2022 20:02:19 :::CIS 2 holding the accused guilty of having committed offence punishable under Section 138 of Negotiable Instruments Act, (in short ' NI Act') convicted and sentenced him to undergo simple imprisonment for a .
period of six months and pay compensation to the tune of Rs. 3.00 lac to the complainant.
2. Precisely, the facts of the case as emerge from the record are that respondentcomplainant instituted proceedings under Section 138 of the NI Act in the competent court of law alleging therein that she approached accused, who at the relevant time was property dealer, for purchase of plot and construction of house. She alleged that accused demanded Rs. 4.00 lac for purchase of plot. Though the sum of Rs. 2.00 lac was paid to the accused but the accused failed to finalize the plot and in lieu thereof issued cheque bearing No. 737253 for a sum of Rs. 2.00 lac drawn at State Bank of India, Ghanahatti, Tehsil and District Shimla, H.P.
However, the fact remains that the aforesaid cheque on its presentation in the bank, was dishonored on account of 'insufficient funds'. Since, despite having received legal notice, accused failed to make the payment good within the time stipulated in the notice, complainant was compelled to institute case under Section 138 of the NI Act in the competent court of law, which subsequently on the ::: Downloaded on - 14/10/2022 20:02:19 :::CIS 3 basis of pleadings as well as evidence adduced on record by the parties, held the accused guilty for having committed offence punishable under Section 138 of the NI Act and accordingly .
convicted and sentenced him as per description given hereinabove.
3. Being aggrieved and dissatisfied with the aforesaid judgment of conviction and order of sentence recorded by learned court below, accused preferred appeal in the court of learned Sessions Judge, Shimla but the same was dismissed, as such petitioner approached this Court by way of instant proceedings, praying therein for his acquittal after setting aside the judgment of conviction and sentence recorded by learned court below.
4. Vide order dated 17.10.2019, this Court suspended the substantive sentence imposed by the learned trial court subject to the petitioner's depositing balance compensation amount in the Registry of this Court within a period of eight weeks. However, the fact remains that the aforesaid order never came to be complied with, as a consequence of which, interim protection granted by this Court came to an end.
5. During proceedings of the case, petitioner filed an application bearing No. 2288 of 2022 under Section 482 of Cr.PC, enclosing therein compromise arrived at inter se parties, whereby ::: Downloaded on - 14/10/2022 20:02:19 :::CIS 4 parties resolved to settle their dispute for a sum of Rs. 2.70 lac. Vide aforesaid application, prayer came to be made on behalf of the accused that since he has paid entire agreed amount of Rs. 2.70 lac .
in terms of settlement arrived at inter se parties, this Court, while exercising powers under S.147 of the Act may proceed to compound the case. However, on that day, learned counsel representing accused apprised this Court that despite repeated communications, no instructions have been imparted to him and as such this Court may issue notice to the petitioner, returnable for 21.9.2022.
6. Though service of notice for 21.9.2022 is still awaited but learned counsel for the respondent apprised the Court that despite issuing registered letter, respondent is not coming forward to impart instructions, as such this Court is compelled to believe that respondent is no more interested to pursue the case, as she has settled the dispute by accepting sum of Rs. 2.70 lac against total sum of Rs. 3.00 lac awarded by learned trial court.
7. Since, parties have resolved their dispute inter se them and in terms of compromise, petitioner has already paid Rs.
2.70 lac to complainant, which fact is evident from the compromise placed on record along with the application, there appears to be no impediment for this Court to accept the prayer made on behalf of the ::: Downloaded on - 14/10/2022 20:02:19 :::CIS 5 petitioner for compounding the offence by exercising the powers under Section 147 of Cr.PC and in terms of guidelines issued by Hon'ble Supreme Court in Damodar S. Prabhu v. Sayed Babalal .
H. (2010) 5 SCC 663, wherein the Hon'ble Supreme Court has categorically held that Court can proceed to compound the offence even in those cases, where the accused stands convicted.
8. Consequently, in view of above, present petition is allowed and judgment and conviction and order and sentence dated 9.10.2018/11.10.2018 passed by learned r Judicial Magistrate Ist Class, Court No.7, Shimla and further upheld by learned Sessions Judge in Criminal Appeal No. 46S/10 of 2018 is quashed and set aside and petitioner is acquitted of the offence alleged to have been committed by him under Section 138 of NI Act.
(Sandeep Sharma), Judge October 13, 2022 (Guleria) ::: Downloaded on - 14/10/2022 20:02:19 :::CIS