Satish Kumar vs Rana Dayal And Another
2021 Latest Caselaw 3495 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                      Cr. Revision No. 108 of 2020
                                        Decided on: August 4, 2021




                                                                      .
    ________________________________________________________________





    Satish Kumar                                      .........Petitioner
                                            Versus





    Rana Dayal and another                            ...Respondents
    ________________________________________________________________
    Coram
    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting1?





    ________________________________________________________________
    For the petitioner:    Mr. Dheeraj K. Vashisht, Advocate.
    For the respondents: Mr. N.K. Thakur, Senior Advocate with
                           Mr. Divya Raj Singh, Advocate, for
                           respondent No.1.


                           Mr. Sudhir Bhatnagar and Mr. Desh Raj
                           Thakur, Additional Advocates General
                           with Mr. R.P. Singh and Mr. Narinder
                           Thakur, Deputy Advocates General, for


                           respondent No.2.
    ________________________________________________________________
    Sandeep Sharma, J. (Oral)

Instant criminal revision petition filed under S.397

CrPC lays challenge to judgment dated 4.1.2020 passed by

learned Additional Sessions Judge-II Una, in Cr. Appeal 46/2019

titled Satish Kumar vs. Rana Dayal affirming the judgment/order

of conviction dated 31.5.2019 passed by learned Judicial

Magistrate 1st Class, Court No. II, Una, in Cr. Complaint No.

719/2014 in case titled Rana Dayal vs. Satish Kumar, whereby

learned court below, while holding the petitioner-accused

Whether reporters of the Local papers are allowed to see the judgment? .

(hereinafter, 'accused') guilty of having committed offences

punishable under S.138 of the Negotiable Instruments Act

.

(hereinafter, 'Act') convicted and sentenced him to undergo

simple imprisonment for three months and to pay compensation

of Rs.80,000/-.

2. Precisely the facts as emerge from the record are that

the respondent-complainant (hereinafter, 'complainant'),

instituted a complaint under S.138 of the Act alleging therein

that in the month of June, 2013, accused requested him to

advance a loan of Rs.70,000/- for the treatment of his mother.

On account of cordial relations, complainant gave Rs.70,000/- to

the accused, who with a view to discharge his liability issued

cheque bearing No. 001271 dated 17.2.2014 payable at IDBI

bank Una in the sum of Rs.70,000/-, however, the fact remains

that on presentation, said cheque was dishonoured and as such,

complainant issued a legal notice calling upon the accused to

make good the payment. Since the accused failed to make the

payment within the period stipulated in the legal notice,

complainant was compelled to institute proceedings under S.138

of the Act in the competent court of law.

3. Learned court below on the basis of evidence adduced

on record by parties, held the accused guilty of commission of

offence punishable under S.138 of the Act and convicted and

sentenced him as per description given herein above.

.

4. Being aggrieved and dissatisfied with the

judgment/order of conviction passed by learned trial court,

accused preferred an appeal in the court of learned Additional

Sessions Judge II, which also came to be dismissed vide

judgment dated 4.1.2020. In the aforesaid background, the

accused has approached this court in the instant proceedings,

praying therein to acquit him of the charges framed against him

after setting aside judgment/order of conviction and sentence

passed by learned courts below.

5. During proceedings of the case, learned counsel for

the petitioner indicated his willingness to get the matter settled

and informed this court that a sum of Rs.28,000/- already

stands paid to the complainant during the pendency of the trial

before learned court below. He further stated that the remaining

amount shall be paid by the accused to the complainant.

6. On 6.3.2021, parties came present in the court and

expressed their desire to get the matter settled amicably. During

proceedings of the case today, Mr. Dheeraj K. Vashishta,

Advocate, appearing for the accused contended that since the

entire amount as awarded by learned court below stands

deposited with the learned Courts below, same can be ordered to

be released in favour of the respondent and this court while

exercising power under S.147 of the Act can proceed to

.

compound the offence.

7. Mr. N.K. Thakur, learned Senior Advocate

representing the complainant while fairly acknowledging the

factum with regard to receipt of Rs.28,000/- during pendency of

trial, submitted that since the complainant was unnecessarily

compelled to institute proceedings in the competent court of law

for realization of his own money, accused may be directed to pay

some amount on account of litigation charges also.

8. Having heard learned counsel for the parties and

perused material available on record this court finds that out of

Rs.80,000/- a sum of Rs.28,000/- was paid to the respondent

which stands mentioned in the judgment of learned trial Court.

Accused has deposited Rs.10,000 in this court in terms of order

dated 26.2.2020 and Rs.22,000/- and Rs.20,000/- respectively

before learned trial Court and the first appellate court, meaning

thereby, in total complainant has deposited Rs.52,000/- in the

courts, apart from Rs.28,000/- already paid to the respondent.

9. If the aforesaid sum of Rs.52,000/- lying deposited in

various courts is ordered to be released in favour of the

complainant, he can be said to have received entire sum of

Rs.80,000/-. Since both the parties have resolved to settle

dispute inter se them, there appears to be no impediment in

exercising power under S.147 of Act and to do the needful in

.

terms of judgment of Hon'ble Apex Court in Damodar S. Prabhu

v. Sayed Babalal H. (2010) 5 SCC 663, whereby it has been

categorically held that power under S.147 of the Act ibid can be

exercised even in those cases, where accused stands convicted.

10. However, having taken note of the fact that the

complainant was unnecessarily dragged into litigation by the

accused, an amount of Rs.15,000/- is awarded as costs payable

by the accused to the complainant, within a period of four weeks

and Registry shall remit the said amount into the account of the

complainant, details whereof shall be furnished by the

complainant within two weeks, on his making a formal

application in this regard. It is made clear that in case costs are

not deposited within the time stipulated by this court, accused

would render himself liable for penal consequences as well as

contempt of court proceedings. Further learned Courts below are

directed to release the amount deposited by the accused with

them, in favour of the complainant, on his making formal

application(s), in this regard.

11. Consequently, in view of the law laid down by Hon'ble

Apex Court in Damodar S. Prabhu (supra), present petition is

allowed. Impugned judgments/order of conviction and sentence

passed by both the learned Courts below are quashed and set

aside. Petitioner is acquitted of the offence punishable under

.

S.138 of the Act ibid. Bails bonds, if any, furnished by him are

discharged.

12. The petition is disposed of in aforesaid terms,

alongwith all pending applications, if any.

Copy Dasti.

(Sandeep Sharma) Judge August 4, 2021 (Vikrant)r