Gauhati High Court
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GAHC010130582022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet./635/2022
RIYA SANGMA @ GLORIA SANGMA @ LUDIA AND ANR
D/O- LATE KOLENDRA SANGMA, W/O- LATE JANATHAN, R/O- VILL.-
BAKA, P.O. AND P.S. NORTH GUWAHATI, KAMRUP, GUWAHATI.
2: DHIRAJ KALITA
S/O- LATE MAHESWAR KALITA
R/O- DAKSHINGAON
BALIJAN PATH
P.O. KAHILIPARA
PS.. DISPUR
DIST. KAMRUP(M)
ASSA
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE P.P., ASSAM
Advocate for the Petitioner : MR. A M BORA
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE ARUN DEV CHOUDHURY
ORDER
05.07.2022
Heard Mr. A. M. Bora, learned Senior Counsel assisted by Mr. V. A.
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Chowdhury, learned counsel for the petitioner. Also heard Mr. B. B. Gogoi,
learned Additional Public Prosecutor for the State of Assam.
The two petitioners have preferred the present application under Section
482 of the Code of Criminal Procedure, for setting aside the conviction under
Section 138 of the Negotiable Instruments (N.I.) Act and sentence to undergo
simple imprisonment (S.I.) for 6 (six) months against the petitioner No. 1,
passed by the learned Judicial Magistrate First Class, Kamrup (Metro) in C.R.
Case No. 2944/2014 vide judgment dated 24.05.2018.
The further challenge in the present application is the Judgment and Order
dated 17.01.2020 passed by the learned Additional Sessions Judge No. 1,
Kamrup (Metro), Guwahati, Assam in Criminal Appeal No. 97/2018 by which the
judgment dated 24.05.2018 as stated hereinabove was upheld.
The prosecution was initiated on a complaint being C.R. Case No.
2944/2014 under N.I. Act by the petitioner No. 2 herein against the petitioner
No. 1.
The case projected by the petitioners is that subsequent to the judgment
dated 24.05.2018 and the judgment dated 17.01.2020, two petitioners have
come to a mutual understanding outside the Court with certain term, which as
reflected at paragraphs 7, 8, 9 and 10 and quoted herein below:-
"7. That the petitioners beg to state that they have come to a mutual
understanding outside court i.e. the petitioner No. 2 had received the
mutually agreed full and final payment from the petitioner No. 1 (Riya
Sangma @ Gloria Sangma @ Ludia) against Chque No. 997330 dated
16.07.2014 drawn by the petitioner No. 1 (Riya Sangma) in favour of
petitioner No. 2 (Dhiraj Kalita) from her SB A/c No. 20053983704, State
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Bank of India, Dispur, Kahilipara, Main Road, Jatia, Guwahati-6 Assam in
connection with Complaint Case No. 2944/2014 and order dated 24.05.2018
passed by the Judicial Magistrate First Class, Kamrup (Metro) and also
Criminal Appeal No. 97/2018 and Judgment and order dated 17.01.2020
passed by the Additional Sessions Judge No. 1, Kamrup (Metro), Guwahati,
Assam.
8. The petitioner No. 2 begs to state he is fully satisfied with the mutually
agreed full and final payment received from the petitioner No. 1 (Riya
Sangma @ Gloria Sangma @ Ludia) against Cheque No. 997330 dated
16.07.2014, and hence both the petitioner have approached before this
Hon'ble Court to allow this petition and set aside the conviction of petitioner
No. 1 under Section 138 of the N.I. Act, and sentence to undergo simple
imprisonment for 6 (six) months, passed by the Judicial Magistrate First
Class, Kamrup (Metro) in C.R. Case No. 2944/2014 vide Judgment dated
24.05.2018 and also judgment and order dated 17.01.2020 passed by the
Additional Sessions Judge No. 1, Kamrup (Metro), Guwahati, Assam in
Criminal Appeal No. 97/2018 vide which the Trial Court Order was upheld.
9. The petitioner No. 2 has no objection and has consented to receive the
mutually agreed full and final payment from the petitioner No. 1 (Riya
Sangma @ Gloria Sangma @ Ludia) against Cheque No. 997330 dated
16.07.2014, the petitioner No. 2 further does not wish to pursue the matter
and prays before this Court to set aside the conviction and sentence against
the petitioner No. 1.
10. The petitioner No. 2 states that the main grievance for the petitioner
was the non payment of money. Therefore, as the mutually agreed full and
final payment was received from the petitioner No. 1 (Riya Sangma @
Gloria Sangma @ Ludia) against Cheque No. 997330 dated 16.07.2014, the
petitioner No. 2 has no other grievances against the petitioner No. 1.
Therefore, the conviction under Section 138 of the N.I. Act and sentence to
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undergo simple imprisonment for 6 (six) months against the petitioner No.
1, passed by the Judicial Magistrate First Class, Kamrup (Metro) in C.R. Case
No. 2944/2014 vide Judgment dated 24.05.2018 and also Judgment and
order dated 17.01.2020 passed by the Additional Sessions Judge No. 1,
Kamrup (Metro), Guwahati, Assam in Criminal Appeal No. 97/2018 may be
set aside by this Hon'ble Court".
The aforesaid statements are supported by two separate affidavits sworn in
by the petitioner No. 1 and petitioner No. 2 respectively.
The fact of the case reveals that the nature of dispute is pre predominantly
private. Though by the impugned judgment and sentence, the petitioner No. 1
has already been convicted, the materials reveals that a compromise is struck
post conviction. The statement made in the joint petition preferred by the
informant and the accused as well as the affidavit filed discloses that the
compromised has been entered into voluntarily. The nature of the offences is
also not heinous.
Considering the matter in entirety as discussed hereinabove, more
particularly considering the nature of the offence, which is predominantly
private and the circumstances and the mode in which the compromise has been
arrived at, this Court is of the considered opinion that, this is a fit case where
the extra ordinary power under Section 482 of the Code of Criminal Procedure
can be exercised to secure the ends of justice.
Accordingly, the judgment and conviction under Section 138 of the
Negotiable Instruments (N.I.) Act and sentence to undergo simple imprisonment
(S.I.) for 6 (six) months against the petitioner No. 1, passed by the learned
Judicial Magistrate First Class, Kamrup (Metro) in C.R. Case No. 2944/2014 vide
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judgment dated 24.05.2018 and the Judgment and Order dated 17.01.2020
passed by the learned Additional Sessions Judge No. 1, Kamrup (Metro),
Guwahati, Assam in Criminal Appeal No. 97/2018 affirming the judgment dated
24.05.2018, are set aside and quashed.
In the aforesaid terms, this criminal petition is disposed of.
JUDGE
Comparing Assistant
