Himachal Pradesh High Court
Rohru vs Hardeep Thakur on 17 August, 2021
Bench: Anoop Chitkara
1
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
ON THE 17TH DAY OF AUGUST, 2021
.
BEFORE
HON'BLE MR. JUSTICE ANOOP CHITKARA
CRIMINAL REVISION NO.145 OF 2021
BETWEEN:-
HARDEEP THAKUR, S/O SHRI SURJAN THAKUR, R/O
VILLAGE SAMOLI-KOTSARI , P.O. ROHRU, TEHSIL
ROHRU, DISTRICT SHIMLA, H.P.
.... PETITIONER
(BY MS SHALINI THAKUR AND SHRI PARVEEN
CHANDEL, ADVOCATES)
AND
SH. HOSHIYAR SINGH, S/O SH. PAGU RAM, R/O
VILLAGE SHILADESH, P.O. LAROAT, TEHSIL
CHIRGAON, DISTRICT SHIMLA, H.P.
..... RESPONDENT.
(BY MS. SHASHI KIRAN, ADVOCATE)
___________________________________________________
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2
This petition coming on for orders this day, the
Court passed the following:
ORDER
.
Cr. Appeal 27-R/10 of 2018, decided by Sessions Judge
Number (Forests), Shimla, H.P., on 16.9.2020.
CHARGES & TRIAL COURT'S VERDICT
Accused Complaint u/s Accused convicted and
Hardeep 138 of the N.I. sentenced to undergo simple
Thakur Act imprisonment for a period of six
months for offence under
Section 138 of Negotiable
Instrument Act. In addition, he
is directed to pay a
compensation of Rs.1,60,000/-
for the said offence.
Learned counsel for the parties submit that the
petitioner/convict and the respondent/complainant have entered
into a compromise.
2. The petitioner, who stands convicted for the
commission of offence punishable under Section 138 of the
Negotiable Instruments Act vide judgment dated 3.10.2018,
passed by Chief Judicial Magistrate Court No.1, Rohru, District
Rohru, Shimla, H.P., in Criminal complainant No.145-3 of
2017, titled as Hoshiyar Singh vs. Hardeep Thakur, as affirmed
by learned Sessions Judge (Forests), Shimla, H.P., in Criminal
Appeal No.27-R/10 of 2018, vide judgment dated 16.9.2020,
has come up before this Court under Section 397 read with
.
Section 401 of the Code of Criminal Procedure, by filing the
present revision petition.
3. Vide order dated 22.7.2021, this Court issued notice
to the respondent.
4. Now, today the matter was taken up. Learned
counsel for the parties placed on record the compromise and
submit that they have instructions from the parties that this
matter has been fully compromised. Learned counsel for the
parties, on instructions, submit that the conviction be set aside
and proceedings be quashed.
5. Perusal of the compromise deed shows that
petitioner-accused Hardeep has paid Rs.1,00,000/- to the
respondent-complainant Hoshiyar Singh. The complainant
submits that he does not want to pursue the present matter
against the accused and he prays that the same be closed. The
parties prays that the matter be compounded in terms of the
judgment passed by the Hon'ble Supreme Court of India in
Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663.
Statements of learned counsel are recorded separately to this
effect.
6. In view of the judgment passed by Hon'ble
Supreme Court of India in Damodar S. Prabhu (supra), 15% of
the cheque amount is to be paid by the complainant to the
Himachal Pradesh State Legal Services Authority.
7. The jurisprudence behind the N.I. Act is that the
.
business transactions are honoured. The legislative intention is
not to send the people to suffer incarceration because their
cheque was bounced. These proceedings are simply to execute
the recovery of cheque amount by showing teeth of penalty
loss.
8. This Court has inherent powers under Section 482 of the
Code of Criminal Procedure which are further supported by
Section 147 of the N.I. Act to interfere in this kind of matter
where parties have paid the entire money and where the
complainant does not object to clear all the proceedings.
9. In view of the entirety of the facts of the case, as well as
judicial precedents, a few of which have been mentioned
hereinabove, I am of the considered opinion that continuation
of these proceedings will not suffice any fruitful purpose
whatsoever. Therefore, I am of the considered opinion that in
view of the compromise, this is a fit case where the inherent
jurisdiction of the High Court under Section 482 of the Code of
Criminal Procedure read with 147 of Negotiable Instruments
Act, is invoked to compound the offence and consequently to
quash the above mentioned FIR and consequent proceedings.
10. In Shakuntala Sawhney v. Kaushalya Sawhney,
(1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed
as follows:
.
"The finest hour of Justice arise propitiously
when parties, despite falling apart, bury the
hatchet and weave a sense of fellowship or
reunion."
11. Consequently, in view of compounding of offences,
the judgment dated 16.9.2020, passed in Criminal Appeal
No.27-R/10 of 2018, titled as Hardeep Thakur vs. Hoshiyar
Singh, pronounced by learned Sessions Judge (Forests), Shimla,
Himachal Pradesh, upholding the judgment dated 3.10.2018,
passed by learned Chief Judicial Magistrate, Court No.1,
Rohru, District Shimla, H.P., in Case No.145-3 of 2017, titled
as Hoshiyar Singh vs. Hardeep Thakur, convicting and
sentencing the petitioner, is set aside and quashed.
Consequently, the petitioner is acquitted of the offence under
Section 138 of the Act. The bail bonds are accordingly
discharged.
12. The convict/accused is directed to deposit 15% of
the cheque amount before the Himachal Pradesh State Legal
Services Authority, in terms of the judgment passed by a Larger
Bench of Hon'ble Supreme Court in Damodar S. Prabhu v.
Sayed Babalal H., (2010) 5 SCC 663, whereby following law
for compounding of offences punishable under Negotiable
Instruments Act, 1881 was laid down:
"....21...THE GUIDELINES
.
(i) In the circumstances, it is proposed as
follows :
(a) That directions can be given that the Writ
of Summons be suitably modified making it
clear to the accused that he could make an
application for compounding of the offences at
the first or second hearing of the case and that
if such an application is made, compounding
may be allowed by the court without imposing
any costs on the accused.
(b) If the accused does not make an application
for compounding as aforesaid, then if an
application for compounding is made before
the Magistrate at a subsequent stage,
compounding can be allowed subject to the
condition that the accused will be required to
pay 10% of the cheque amount to be deposited
as a condition for compounding with the Legal
Services Authority, or such authority as the
Court deems fit.
(c) Similarly, if the application for
compounding is made before the Sessions
Court or a High Court in revision or appeal,
such compounding may be allowed on the
condition that the accused pays 15% of the
cheque amount by way of costs.
(d) Finally, if the application for compounding
is made before the Supreme Court, the figure
would increase to 20% of the cheque amount.
Let it also be clarified that any costs
imposed in accordance with these guidelines
should be deposited with the Legal Services
Authority operating at the level of the Court
before which compounding takes place. For
instance, in case of compounding during the
pendency of proceedings before a Magistrate's
Court or a Court of Sessions, such costs should
.
be deposited with the District Legal Services
Authority. Likewise, costs imposed in
connection with composition before the High
Court should be deposited with the State Legal
Services Authority and those imposed in
connection with composition before the
Supreme Court should be deposited with the
National Legal Services Authority."
13. The petitioner-accused shall deposit the aforesaid
15% of the cheque amount before the Himachal Pradesh State
Legal Services Authority, on or before 10.11.2021. The
amount deposited before the trial court shall be released to the
complainant, on furnishing bank account number.
The Given above, the present petition stands
disposed of, so also, the pending application(s), if any.
Anoop Chitkara,
Judge.
August 17, 2021 (ks).
