Fina Dass Son Of Sh. Giyaru vs Sayed
2021 Latest Caselaw 5444 HP

       IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA




                                                                    .
                    ON THE 27th DAY OF NOVEMBER, 2021





                               BEFORE
              HON'BLE MR. JUSTICE VIVEK SINGH THAKUR





                    CRIMINAL REVISION NO. 79 OF 2021

    Between:-





    FINA DASS SON OF SH. GIYARU
    RAM, R/O VILLAGE PAGAS, POST
    OFFICE   KHANGTERI,   TEHSIL
    ROHRU,     DISTRICT  SHIMLA,
    HIMACHAL PRADESH.


                                                       ........ PETITIONER.

    ( BY MR. RAJIV JIWAN, SR. ADVOCATE
     WITH MR. PRASHANT SHARMA, ADVOCATE)



    AND

    YASHPAL THARTA SON OF SH.




    BALDEV SINGH, R/O VILLAGE AND
    POST OFFICE KARASA, TEHSIL





    ROHRU,    DISTRICT     SHIMLA,
    HIMACHAL PRADESH.
                                                       .....RESPONDENT





    (MR. K.B KHAJURIA, ADVOCATE)

    Whether approved for reporting?


     These petitions coming on for order this day, the Court passed the following:-

                                  ORDER

Present revision petition has been filed assailing

judgment dated 15.1.2021, passed by learned Sessions Judge

(Forests), Shimla, Himachal Pradesh in Cr. Appeal No. 31-R/10 of

.

2019, whereby judgment/order dated 07.09.2019/27.9.2021, passed

by learned Additional Chief Judicial Magistrate, Court No.1, Rohru,

District Shimla, H.P. in criminal case No. RBT-584/3 of 2019/16,

convicting and sentencing the petitioner/accused to undergo simple

imprisonment for a period of one year and to pay compensation of

2. to Rs.6,70,000/- to the complainant, has been affirmed.

Petitioner-accused, present in person, in his statement

has stated that the matter has been compromised with respondent

Yashpal Tharta and as per compromise Rs.1,00,000/- (One lac)

deposited by him in the trial Court, at the time of suspension of

sentence shall be released in favour of Yashpal Tharta. He has

further stated that he has handed over possession of his apple

orchard existing over Khasra No. 499 for two years i.e 2021 and 2022

to Yashpal Tharta and that in terms of compromise, apples of this

year have been plucked by respondent Yashpal Tharta and in turn

Yashpal Tharta has agreed to withdraw the complaint for

compounding the case. The compromise (Ex. PA) has been reduced

into writing and has been signed by him and respondent Yashpal in

presence of witnesses. He has endorsed his signatures thereon. He

has also stated that he has compromised the matter out of his free will

and consent and without any threat, coercion or pressure of any kind.

3 Mr. Kulbhushan Khajuria, learned counsel for the

.

respondent, in his statement, has deposed that he is competent and

authorized to make statement on behalf of the respondent. He further

stated that the respondent has instructed him to endorse the

compromise executed between the parties. He has endorsed the

statement made by the petitioner Fina Dass and compromise deed Ex.

PA and therefore on behalf of respondent Yashpal Tharta, he has

prayed permission to withdraw the complaint for compounding the

case in terms of compromise. He has also stated that his deposition in

Court is strictly in consonance with the instructions imparted to him by

the respondent.

4 Consequently, respondent/complainant is permitted to

withdraw the complaint and matter is compounded and complaint

arising out of dishonour of cheque under Section 138 of Negotiable

Instrument Act is treated to be withdrawn and judgments of conviction

and sentence passed by learned Courts below are quashed and set

aside. Petitioner/accused is acquitted of the accusation framed against

him.

5 Learned counsel for the petitioner has also prayed for

exempting the compounding fee for poor financial condition of the

respondent. It is also submitted by him that considering the ratio of law

laid down by the Apex Court in Damodar S.Prabhu vs. Sayed

Babalal H. (2010)5 SCC 663, as clarified by the Apex Court in

.

Madhya Pradesh Legal Services Authority vs. Prateek Jain and

another (2014)10 SCC 690, wherein it has been held that Court may

reduce/exempt compounding fee for given facts and circumstances of

a particular case, present case is a fit case for exemption of

compounding fee.

6.

Considering facts and circumstances of the case and

keeping in view the poor financial condition of petitioner being

agriculturist and the fact that he has handed over possession of his

apple orchard to the respondent for two years i.e 2021 and 2022 and

in terms of compromise apples of this year have been plucked by the

respondent and in addition he has no objection in case the sum of

Rs.1,00,000/- (one lac) deposited by him in the trial Court is ordered to

be released in favour of the respondent/complainant, I am of the

opinion that it is an appropriate case to exempt the petitioner from

paying compounding fee. Therefore, petitioner is exempted from

depositing the compounding fee.

7 Trial Court is directed to release the sum of Rs. 1,00,000/-

along with up-to-date interest, in favour of respondent by remitting the

same in his bank account, details whereof shall be supplied by the

respondent himself or through his counsel without issuing notice to

petitioner/accused.

Petition stands disposed of, in the aforesaid terms, so

.

also the pending application(s), if any.

Copy dasti.

    27th November, 2021                              (Vivek Singh Thakur),
       (priti)                                             Judge.




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