Calcutta High Court (Appellete Side)

Abdul Somi Mondal vs Shriram Transport Finance ... on 11 August, 2023

                     IN THE HIGH COURT AT CALCUTTA
                       Criminal Revisional Jurisdiction
                             APPELLATE SIDE

Present:

The Hon'ble Justice Shampa Dutt (Paul)



                                  CRR 1399 of 2020

                                  Abdul Somi Mondal

                                                 Vs.

                    Shriram Transport Finance Company Ltd.



For the Petitioner                 :            Mr. Saryati Datta,
                                                Mr. Sanjib Kr. Dan,
                                                Mr. Chitrak Biswas.



For the Opposite Party            :             None.



Heard on                              :        19.07.2023

Judgment on                       :            11.08.2023

Shampa Dutt (Paul), J.:

1.

The present revision has been preferred against a judgment and order

dated 29th October, 2019 passed by the Learned Sessions Judge, Birbhum

in Criminal Appeal No. 47 of 2018 thereby affirming the order dated

27.09.2018 passed by the Learned Judicial Magistrate, 3rd Court, Suri,

Birbhum in connection with Complaint Case No. C/31/2016 under

Section 138 of the Negotiable Instruments Act whereby the learned

Magistrate was pleased to direct payment of compensation of

Rs.5,80,000/- to the opposite party within six months from the date of the

order i.d. to suffer simple imprisonment for six months.

2. The fact of the case is that the opposite party's company is carrying on

business of financing and used to lend money to its customer for various

transporting business. Petitioner is one of such customers. The petitioner

applied for a loan before the opposite party and the opposite party

sanctioned a loan of Rs.6,50,000/- vide loan Agreement No.

BIRBUO312310007 to the petitioner for purchase of a vehicle being no.

WB53A/9157 and the said sanctioned amount was also disbursed to the

petitioner. The petitioner became irregular in payment of the monthly

installment along with interest. The petitioner then gave one cheque duly

signed being no.099360 dated 07.12.2015 of Rs.5,75,000/- (Rupees Five

Lakh Seventy Five Thousand only) of State Bank towards payment of his

arrear monthly loan installment with interest in part, in the name of the

opposite party. The opposite party then presented the said cheque for

encashment but the said cheque was dishonoured on the ground of

"insufficiency of fund" vide its cheque return memo dated 09.12.2015.

Thereafter the opposite party through his lawyer issued a demand notice

dated 24.12.2015 through Registered Post with A/D. The petitioner duly

received the said demand notice but did not pay the dishonoured cheque

amount within the statutory period as such the opposite party filed the

present complaint case No. C/31/2016 against the petitioner under

Section 138 of the Negotiable Instruments Act.

3. The Learned Judicial Magistrate, 3rd Court, Suri, Birbhum vide his

judgment and order dated 27.09.2018 was pleased to convict the petitioner

under Section 138 of the Negotiable Instruments Act and was pleased to

direct payment of compensation of Rs.5,80,000/- to the opposite party

within six months from the date of the order i.d. to suffer simple

imprisonment for six months.

4. Being aggrieved by and/or dissatisfied with the judgment and order

dated 27.01.2018 the petitioner preferred a Criminal Appeal being No. 47

of 2018 before the Court of the Learned Sessions Judge, Birbhum at Suri.

5. It is further submitted that subsequently a settlement was entered

into between the petitioner and the opposite party. A full and final

settlement has been entered between the parties and Rs.3,90,000/- has

been fixed as the amount towards the loan Agreement No.

BIRBUO312310007 for Vehicle No. WB53A-9157 to be paid by the

petitioner. The petitioner till date out of the aforesaid amount has paid

Rs.2,30,000/-. But subsequently on account of the outbreak of the

pandemic, COVID-19, and the consequent implementation of the

countrywide lockdown by the Government of India, the petitioner is

unable to pay the rest the amount.

6. Mr. Saryati Datta, learned counsel for the petitioner has submitted

that Section 147 of the Negotiable Instruments Act provides no explicit

guidance as to what stage compounding can or cannot be done and

whether compounding can be done at the instance of the complainant or

with the leave of the court. But Hon'ble Apex Court in various judgments

observes that at any stage the offence under Section 138 of the Negotiable

Instruments Act can be compounded under Section 147 of the said Act.

7. Thus it is submitted that the impugned judgment and order of

conviction and sentence is perverse and suffers from inherent infirmities

and is also not tenable in law and is liable to be set aside.

8. In spite of due service there is no representation on behalf of the

opposite party.

9. The judgment and order under revision is dated 29.11.2019.

10. Subsequently, a settlement was entered into between the

petitioner and the opposite party. A full and final settlement has been

entered between the parties and Rs.3,90,000/- has been fixed as the

amount towards the loan Agreement No. BIRBUO312310007 for Vehicle

No. WB53A-9157 to be paid by the petitioner. It is submitted that the

petitioner till date out of the aforesaid amount has paid Rs.2,30,000/-. But

subsequently on account of the outbreak of the pandemic, COVID-19, and

the consequent implementation of the countrywide lockdown by the

Government of India, the petitioner admittedly could not pay the rest of

the amount.

11. The said full and final settlement letter issued by the opposite

party is dated 24.01.2020 and reads as follows:-

"This is to confirm that the full and final settlement amount of loan no.- BIRBUO312310007, Vehicle no. - WB53A-9157 is Rs.3,90,000/- (1,30,000/- Paid on 24.01.2020 & rest Rs.2,60,000/- within dated- 31/01/2020)."

12. The said settlement has been arrived at after the judgment under

revision. The only contention of the petitioner is as the matter has now

been settled, necessary orders may be passed.

13. It appears from the materials on record that the amount reduced to Rs.

3,90,000 by the complainant/opposite parties is a lot less than the

compensation amount of Rs. 5,80,000. In spite of that the petitioner has

not made the full payment.

14. The Supreme Court in B.V. Seshaiah vs. The State of Telangana &

Anr. and B. Vamsi Krishna vs. The State of Telengana & Anr., (2023

Live Law (SC) 75) on 1st February, 2023 held:-

"8. In our view, the terms ad conditions of the settlement entered into by the parties binds them to settle the dispute amicably, or through an arbitration as has been stated in clause 8 of the Memorandum of Understanding.

9. In such a circumstance, the Appellants cannot be convicted on the basis of the orders passed by the courts below, as the settlement is nothing but a compounding of the offence.

10. In the case of M/s. Meters and Instruments Private Limited & Anr. Vs. Kanchan Mehta, this court held that the nature of offence under section 138 of the N.I. Act is primarily related to a civil wrong and has been specifically made a compoundable offence. The relevant paragraph of the judgement has been extracted herein:

"This Court has noted that the object of the statute was to facilitate smooth functioning of business transactions.

The provision is necessary as in many transactions' cheques were issued merely as a device to defraud the creditors. Dishonour of cheque causes incalculable loss, injury and inconvenience to the Vide the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 payee and credibility of business transactions suffers a setback. At the same time, it was also noted that nature of offence under Section 138 primarily related to

a civil wrong and the 2002 amendment specifically made it compoundable."

11. This is a very clear case of the parties entering into an agreement and compounding the offence to save themselves from the process of litigation. When such a step has been taken by the parties, and the law very clearly allows to do the same, the High Court then cannot override such compounding and impose its will."

15. But in the present case it is admitted by the petitioner that the

total amount as settled with the opposite party has not been paid by

the petitioner.

16. Thus the said settlement has failed on the part of the petitioner.

As such the present case cannot be compounded as prayed for.

17. On perusal of the materials on record, the order dated 29th October,

2019 passed by the Learned Sessions Judge, Birbhum in Criminal Appeal

No. 47 of 2018 thereby affirming the order dated 27.09.2018 passed by the

Learned Judicial Magistrate, 3rd Court, Suri, Birbhum in connection with

Complaint Case No. C/31/2016 under Section 138 of the Negotiable

Instruments Act whereby the learned Magistrate was pleased to direct

payment of compensation of Rs.5,80,000/- to the opposite party within six