Hardeep Thakur vs Rajesh
2021 Latest Caselaw 3807 HP

       IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                    ON THE 10TH DAY OF AUGUST, 2021

                                    BEFORE




                                                                   .
                HON'BLE MR. JUSTICE SANDEEP SHARMA





                     CRIMINAL REVISION NO. 41 OF 2021





    Between:-

    HARDEEP THAKUR,
    S/O SH. SURJAN SING,
    R/O VILLAGE SAMOLI,





    P.O. ROHRU, TEHSIL ROHRU,
    DISTRICT SHIMLA, H.P. AGED ABOUT 34 YEARS
                                                               ... PETITIONER
    (BY MR. PARVEEN CHANDEL, ADVOCATE)

    AND


    RAJESH,
    S/O SH. UTTAM SAIN,
    R/O VILLAGE GHARSHAL,
    P.O. DEVIDHAR, TEHSIL CHIRGON,


    DISTRICT SHIMLA, H.P.
                                                             .. RESPONDENT




    (BY MR. ROMESH VERMA, ADVOCATE)





    This petition coming on for orders this day, the court passed the following:





                                   ORDER

By way of instant Cr. Revision filed under S. 397 read with

401 CrPC, challenge has been laid to judgment dated 9.1.2020 passed by

learned Additional Sessions Judge-II, Shimla camp at Rohru, Himachal

Pradesh in Cr. Appeal No. 20-R/10 of 2018, affirming the judgment of

conviction and order of sentence dated 2.11.2018 passed by learned

Additional Chief Judicial Magistrate, Court No.1 Rohru, District Shimla in

Complaint Case No. 35-3 of 2018, whereby learned court below, while

holding petitioner-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 a period

of six months and to pay compensation of Rs.1,30,000/-.

2. Precisely, the facts of the case as emanate from record are that

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

complaint under S.138 of the Act in the court of learned Additional Chief

Judicial Magistrate, Court No.1, Rohru, alleging therein that during apple

season 2017, accused purchased apple boxes from him for a total

consideration of Rs.1,11,550/-, and, in discharge of said liablilty, accused

issued a cheque bearing No. 897675, dated 20.10.2017, amounting to Rs.

1,11,550/- drawn on Punjab National Bank,. Rohru. However, the fact

remains that the aforesaid cheque on presentation to bank concerned

was dishonoured on account of insufficient funds in the account of the

accused. After receipt of memo from bank concerned, complainant sent

statutory demand notice dated 15.12.2017 to the accused calling upon

him to make good the payment, within 15 days from the date of receipt of

notice. Since despite aforesaid notice, accused failed to make good the

payment, complainant was compelled to institute proceedings under

S.138 in competent court of law.

3. Learned trial Court, on the basis of material available on record

held the accused guilty of having committed 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 aforesaid judgment of

conviction and order of sentence recorded by learned trial Court, accused

.

preferred an appeal in the court of learned Additional Sessions Judge-II,

Shimla camp at Rohru, District Shimla, who, vide judgment dated

9.1.2020 dismissed the appeal. In the aforesaid background, accused has

approached this court in the instant proceedings, praying therein for his

acquittal after setting aside judgments and order of conviction recorded by

learned courts below.

5. Vide order dated 17.3.2021, this court suspended the

substantive sentence imposed by learned trial Court, subject to depositing

entire amount of compensation by the accused but before aforesaid

amount could be deposited, the accused has entered into a compromise

which has been placed on record, whereby petitioner has agreed to make

complete payment of compensation amount, awarded by learned trial

Court. As per agreement, an amount of Rs.80,000/- has been paid in cash

to the complainant and accused has agreed that the sum of Rs.32,500/-

lying deposited with the learned trial Court can be ordered to be released

in favour of the complainant.

6. This court with a view to ascertain the correctness and

genuineness of compromise placed on record, deemed it fit to cause

presence of the complainant. Complainant has come present in the court

and states on oath that he of his own volition and without there being any

external pressure, has entered into compromise with the accused. He

further states that a sum of Rs.80,000/- stands received by him and

accused has expressed his no objection for the release of Rs.32,500/-

lying deposited with learned trial Court in his favour and as such, he shall

have no objection in case prayer made on behalf of accused for

.

compounding the offence and acquitting him of the charges framed

against under S.138 of the Act is accepted. His statement is taken on

record.

7. Mr. Romesh Verma, learned counsel for the complainant fairy

states that since the complainant of his own volition has entered into

compromise with the accused, this court can exercise power under S.147

of Act and proceed to compound the offence.

8. Having carefully perused the averments contained in the

compromise, this court is convinced and satisfied that the entire amount

of compensation stands paid to the accused and as such, there appears

to be no impediment in accepting the prayer made in the present petition

in view of the provisions contained under S.147 of the Act, as well as

.guidelines laid down by Hon'ble Apex Court in Damodar S. Prabhu v.

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

court while exercising power under S.147 can proceed to compound

offence even in those cases, where accused stands convicted.

9. In view of above, present revision is allowed. Judgments/order

of conviction and sentence passed by both the learned Courts below are

quashed and set aside and accused is acquitted of the charges framed

against him under S.138 of the Act. Learned trial Court .is directed to

release Rs.32,500/- alongwith interest in favour of the complainant by

remitting the same into his savings bank account, details whereof shall be

supplied by the complainant within a week to the learned trial Court. Since

the petitioner is behind the bars, learned court below is directed to

prepare and issue his release warrants forthwith, in case he is not

.

required in any other case.

10. Petition stands disposed of in the afore terms, alongwith all

pending applications.

Copy dasti..

(Sandeep Sharma)

Judge August 10, 2021 (Vikrant)