Dinesh Kumar vs Son Of Shri Suryadev Rai
2021 Latest Caselaw 5478 HP

      IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                  ON THE 29TH DAY OF NOVEMBER, 2021

                                    BEFORE




                                                                   .
               HON'BLE MR. JUSTICE SANDEEP SHARMA





                     CRIMINAL REVISION NO. 42 OF 2021





    Between:-

    DINESH KUMAR
    PROPRIETOR/AUTHORIZED SIGNATORY,
    M/S DINESH UDYOG,





    V.P.O. GUTKAR,
    TEHSIL AND DISTRICT MANDI,
    H.P.
                                                               ... PETITIONER
    (BY MR. ALVIN MASSEY AND

    MR. KISHORE PUNDEER,

    ADVOCATES)

    AND

    M/S A.K. ENTERPRISE,


    SUBATHU ROAD,
    GHATTI, POST OFFICE GHATTI,
    TEHSIL & DISTRICT SOLAN




    (H.P.)
    THROUGH ITS PROPRIETOR
    SHRI ARVIND KUMAR RAI





    SON OF SHRI SURYADEV RAI

                                                            . RESPONDENTS





    (BY MR. MANOHAR LAL SHARMA,
    ADVOCATE)

    Whether approved for reporting:

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

By way of instant criminal revision petition filed under S.397 and

401 CrPC, challenge has been laid to judgment dated 21.3.2020 passed

by learned Sessions Judge, Solan, Himachal Pradesh in Cr. Appeal No.

52-S/10 of 2019, affirming the judgment of conviction and order of

.

sentence dated 25.10.2019/31.10.2019 passed by learned Chief Judicial

Magistrate, Solan, District Solan, Himachal Pradesh in Criminal Complaint

No. 3/3 of 2016/13, whereby learned trial Court, while holding the

petitioner-accused (hereinafter, 'accused') guilty of having committed

offence punishable under S.138 of the Act, (hereinafter Act'), convicted

and sentenced to undergo simple imprisonment for a period of six month

and to pay a compensation of Rs.25,000/- to the respondent-complainant

(hereinafter, 'complainant').

2.

Precisely, the facts of the case, as emerge from the record, are

that the complainant instituted a complaint under S.138 of Act in the

competent court of law alleging therein that accused deals in purchase

and sale of different plastic products and purchased fiber white cloth,

coloured cloth etc. from the complainant and in discharge of his liability,

issued three cheques Nos. 100025, dated 105..2013 for Rs. 10,000/-,

cheque No. 100026, dated 10.6.2013 for Rs. 13,880/- and cheque No.

1000218, dated 29.5.2013 for Rs. 14,000/- /- to the complainant, but the

fact remains that the aforesaid cheques on their presentation for

encashment, were dishonoured on account of insufficient funds, as such,

complainant was compelled to institute the complaint under S.138 of the

Act.

3. Learned trial Court on the basis of evidence led on record by

respective parties, held the accused guilty of having committed offence

punishable under S. 138 of the Act, and accordingly convicted and

sentenced as per description given herein above.

4. Being aggrieved and dissatisfied with judgment of conviction

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

.

an appeal before learned Sessions Judge, Solan, Himachal Pradesh, but

the same was also dismissed vide judgment dated 21.3.2020. In the

aforesaid background, accused has approached this court in the instant

proceedings praying therein for his acquittal after setting aside judgments

of conviction and order of sentence recorded by learned courts below.

5. Vide order dated 25.2.2021, this court, while suspending the

substantive sentence imposed upon the accused by learned trial Court,

directed the accused to deposit entire amount of compensation. In

compliance to the same, accused has deposited Rs.45,000/- with the

learned trial Court.

6. Today during proceedings of the case, learned counsel for the

respondent, on instructions, states that since entire amount of

compensation stands deposited with the learned trial Court and accused

is ready and willing to get the said amount released in favour of the

complainant, this court may proceed to order compounding of the offence

in exercise of power under S.147 of the Act.

7. Mr. Manohar Lal Sharma, learned counsel representing the

complainant, who is otherwise present in the court states that though the

complainant has no objection in compounding the offence but he may be

awarded some amount on account of litigation expenses incurred by him,

for recovery of his own amount

8. Having taken note of the fact that entire amount stands

deposited in this court and learned trial Court and accused has no

objection in releasing the same in favour of the complainant, this court

sees no difficulty in compounding the offence while exercising power

under S. 147 of the Act and in terms of 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. Consequently in view of above, present petition is allowed and

judgments of conviction and order of sentence passed by learned Courts

below are quashed and set aside. Accused is acquitted of charges framed

against him under S. 138 of the Act. Learned court below is directed to

release amount deposited by the accused in favour of complainant by

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

furnished by the complainant within one week.

10. Since the complainant was unnecessarily dragged into litigation

for realisation of his own money, this court deems it fit to award Rs.10,000

as litigation expenses payable within four weeks, to the complainant. In

case aforesaid amount is not paid within the time stipulated to the

complainant, accused would beside rendering him for penal

consequences, shall also render himself liable for contempt of court

proceedings.

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

pending applications. Bail bonds, if any, furnished by the accused are

discharged.

(Sandeep Sharma) Judge November 29, 2021 (Vikrant)