Himachal Pradesh High Court
Between vs Smt. Naresh Gautam on 4 October, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 4th DAY OF OCTOBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No. 315 OF 2019
Between:
KAPIL RAJ SHARMA,
AGED ABOUT 54 YEARS,
S/O SHRI RAMESHWAR DASS SHARMA,
R/O PREET COLONY,
VILLAGE RAKH GHANSOT,
RAMESHHAR ROAD,
NALAGARH, DISTRICT SOLAN, H.P.
....PETITIONER
(BY MR. ANKUSH DASS SOOD,
SENIOR ADVOCATE WITH
MS. SHWETA JOOLKA, ADVOCATE)
AND
SH. SATISH GAUTAM,
S/O LATE SH. MUKHARBIND GAUTAM,
R/O FRIENDS COLONY, CHUHUWAL,
P.O. AND TEHSIL NALAGARH,
DISTRICT SOLAN, H.P. (SINCE DECEASED)
THROUGH HIS LEGAL REPRESENTATIVE
SMT. NARESH GAUTAM,
W/O LATE SH. SATISH GAUTAM,
R/O FRIENDS COLONY, CHUHUWAL,
P.O. AND TEHSIL NALAGARH,
DISTRICT SOLAN, H.P.
....RESPONDENT
(BY MR. AMRINDER SINGH RANA,
ADVOCATE,)
Whether approved for reporting?.
This petition coming on for orders this day, the Court passed the following:
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2
ORDER
.
Instant criminal revision petition filed under Section 397 Cr.PC
read with Section 401 of Cr.PC, lays challenge to judgment dated
15.7.2019, passed by the learned Additional Sessions Judge, Nalagarh,
District Solan, HP, in Criminal Appeal No. 52-NL/10 of 2018, affirming
judgment of conviction and order of sentence dated
23.10.2018/25.10.2018, passed by the learned ACJM, Nalagarh, District
Solan, H.P., in Criminal case No. 87-3 of 2015, whereby the learned trial
Court while holding the petitioner-accused guilty of having committed
offence punishable under Section 138 of the Negotiable Instruments Act (in
short the "Act"), convicted and sentenced him to undergo simple
imprisonment for a period of six months and pay compensation to the tune
of Rs.5,00,000/- to the complainant.
2. Precisely, the facts of the case, as emerge from the record are
that respondent-complainant instituted a complaint under Section 138 of
the Act, in the court of learned ACJM, Nalagarh, alleging therein that he on
the request of the accused advanced Rs. 9.50 lac to him for business
purposes, who with a view to discharge his liability, issued cheque, but fact
remains that aforesaid cheque, on its presentation, was dishonoured on
account of insufficient funds. Since petitioner-accused failed to make the
payment good within the time stipulated in the legal notice,
.
respondent/complainant was compelled to initiate proceedings before the
competent Court of law under Section 138 of the Act.
3. Learned trial Court on the basis of material adduced on record
by the respective parties, vide judgment dated 23/25.10.2018, held the
petitioner-accused guilty of having committed offence under Section 138 of
the Act and accordingly, sentenced him as per the description given herein
above. r
4. Being aggrieved and dis-satisfied with the aforesaid judgment
of conviction recorded by the court below, accused preferred an appeal in
the court of learned Additional Sessions Judge Nalagarh, District Solan,
H.P., which also came to be dismissed vide judgment dated 15.7.2019, as a
consequence of which, judgment of conviction recorded by the learned trial
Court came to be upheld. In the aforesaid background, present petitioner-
accused has approached this Court by way of instant proceedings, seeking
therein his acquittal after setting aside the judgments of conviction
recorded by the courts below.
5. Vide order dated 19.8.2019, this Court, while issuing notice to
the respondent-complainant, suspended the sentence imposed by the court
below subject to petitioner's depositing entire compensation amount and
furnishing personal bonds in the sum of Rs. 25,000/- with one surety in
the like amount to the satisfaction of the learned trial Court within eight
.
weeks. Matter repeatedly came to be adjourned on the request of learned
counsel for the petitioner enabling the accused to deposit the amount, but
on one pretext or the other, he was unable to do the needful.
6. Today during the proceedings of the case, Mr. Ankush Dass
Sood, learned Senior counsel appearing for the petitioner, states that today,
petitioner-accused has come present with sum of Rs. 2,35,000/- to be paid
to the complainant. He states that amount lying deposited with the learned
trial court as well as this court can also be ordered to be released in favour
of the complainant. He states that since entire amount of compensation
now stands paid or agreed to be paid to the complainant, this Court while
exercising power under Section 147 of the Act, may proceed to compound
the offence and acquit the petitioner of the charges framed against him.
7. Mr. Amrinder Rana, Advocate, representing the complainant,
on instructions of his client, who is present before this court, states that in
case amount lying deposited in the Registry of this Court as well as trial
court below is ordered to be released in favour of the complainant, he shall
have no objection in case this Court accepts the prayer made on behalf of
the petitioner for compounding of offence. Sum of Rs. 2,35,000/- has been
handed over to the complainant by the accused in the open court. As per
compensation awarded by the court below, sum of Rs. 5.00 lac is to be paid
to the complainant. Sum of Rs. 2,35,000/- has been paid in cash, whereas
.
remaining amount of Rs. 1,65,000/- stands deposited in the Registry of
this court and Rs. 1.00 lac before the learned trial court below have been
agreed to be released in favour of the complainant.
8. Since entire amount of compensation awarded by the court
below and respondent complainant has been paid or agreed to be paid by
the petitioner to the complainant, this court this Court sees no impediment
in accepting the prayer made on behalf of the petitioner for compounding of
offence while exercising power under Section 147 of the Act as well as in
terms of guidelines issued by the Hon'ble Apex Court in Damodar S.
Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein it has been
categorically held that court, while exercising power under Section 147 of
the Act, can proceed to compound the offence even after recording of
conviction by the courts below.
9. Consequently, in view of the above, present matter is ordered to be
compounded and impugned judgments of conviction and sentence dated
15.7.2019 and 23/25.10.2018, passed by the courts below are quashed and
set-aside and the petitioner-accused is acquitted of the charge framed against
him under Section 138 of the Act. Interim order is vacated. Bail bonds, if any,
discharged. Amount, if any, deposited by the petitioner before this Court as
well as the court below may be remitted in the bank account of the
respondent/complainant on his furnishing bank account details. Accordingly,
.
the petition is disposed of alongwith pending applications, if any.
4th October, 2021 (Sandeep Sharma),
(manjit) Judge
r to
