Himachal Pradesh High Court
Bruhan vs Rakesh Katoch on 14 September, 2021
Bench: Ajay Mohan Goel
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
ON THE 14th DAY OF SEPTEMBER, 2021
.
BEFORE
HON'BLE MR. JUSTICE AJAY MOHAN GOEL
CRIMINAL MISC. PETITION (MAIN) U/S 482 CRPC,
No.358 of 2021
Between:
RAKESH KATOCH, SON OF
SHRI DEVI CHAND KATOCH,
RESIDENT OF VILLAGE
BRUHAN, POST OFFICE
DHANAG, TEHSIL BAIJNATH,
DISTRICT KANGRA,
HIMACHAL PRADESH.
....PETITIONER.
(BY SHRI HAKAM BHARDWAJ, ADVOCATE)
AND
1. THE STATE OF HIMACHAL
PRADESH THROUGH
SECRETARY (HOME) GOVT.
OF H.P. SHIMLA, H.P.
2. VISHAL GOSWAMI, SON OF
SHRI VIJAY KUMAR,
RESIDENT OF VILLAGE
GANKHETAR, POST OFFICE
& TEHSIL BAIJNATH,
DISTRICT KANGRA, H.P.
....RESPONDENTS.
(BY SHRI ADARSH SHARMA, SHRI SUMESH RAJ, SHRI
SANJEEV SOOD, ADDITIONAL ADVOCATES GENERAL, FOR
RESPONDENT NO.1
SHRI RAJESH PRAKASH, ADVOCATE, FOR RESPONDENT
NO.2)
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2
Whether approved for reporting?1 Yes
This petition coming on for admission this day, the Court passed the
following:
.
JUDGMENT
This petition has been filed by the petitioner under
Section 482 of the Criminal Procedure Code, praying for quashing of
the sentence passed by the Court of learned Judicial Magistrate, 1st
Class, Baijnath, District Kangra, H.P., against the present petitioner,
in Criminal Complaint No.49-III/14, dated 17.04.2015, titled Vishal
Goswami Versus Rakesh Katoch.
2. Brief facts necessary for the adjudication of the present
petition are as under:-
The private respondent herein filed a complaint under
Section 138 of the Negotiable Instruments Act against the petitioner
herein, which complaint was allowed by the Court of learned
Judicial Magistrate, 1st Class, Baijnath, District Kangra, H.P., vide
judgment dated 17.04.2015, convicting the petitioner herein for
commission of the offence under Section 138 of the Negotiable
Instruments Act and sentencing him to undergo simple
imprisonment for a period of six months and also to pay a fine of
Rs.1,70,000/-.
3. Feeling aggrieved, the petitioner herein preferred an
appeal under Section 374 of the Criminal Procedure Code before the
learned Appellate Court. It appears that during the pendency of said
appeal, some settlement took place between the complainant and the
accused. This was followed by recording the statement of learned
counsel for the present petitioner, i.e. the appellant therein before
.
the Court of learned Additional Sessions Judge-III, Kangra at
Dharamshala (Circuit Court at Baijnath), in the following terms:-
"Stated that the appellant has paid the full and final
compensation amount to the respondent. Now I want to
withdraw the said appeal".
4. Pursuant thereto, the appeal stood dismissed as
withdrawn by the Court of learned Additional Sessions Judge-III,
Camp at Baijnath, vide order dated 15.01.2019, which order is being
quoted hereinbelow:-
"Vide his separate statement ld. Counsel for appellant
stated that he does not want to pursue with present
appeal as appellant has received entire amount. File
complete in all respects be consigned to record room."
5. Learned counsel for the petitioner has argued that on
account of a bonafide mistake which stands committed by the
learned counsel for the petitioner, who was representing him before
the learned Appellate Court, the impugned order stands passed by
the learned Appellate Court as the intent of the learned counsel was
not to have had withdrawn the appeal itself, but to have had made a
prayer for setting aside of the conviction in view of the matter being
amicably settled in a complaint filed under Section 138 of the
Negotiable Instruments Act. The petitioner has also placed on record
an affidavit of respondent No.2/complainant who has mentioned in
said affidavit that he has received full and final payment of the
cheque in issue and he has no objection in case the proceedings
initiated at his behest are ordered to be quashed and set aside.
.
6. In this background, learned counsel for the petitioner
has submitted that in view of the fact that the matter stands
amicably settled between the parties, it will be in the interest of
justice in case this petition is disposed of by permitting the
complainant to withdraw the complaint which stood filed under the
7.
r to
provisions of Section 138 of the Negotiable Instruments Act as the
petitioner is willing to do so.
Learned counsel for respondent No.2/complainant, on
instructions, informs the Court that the matter indeed stands
amicably settled between the parties and the complainant has no
objection in case this Court in exercise of its inherent jurisdiction,
permits the complainant to withdraw the complaint which was so
filed by him under Section 138 of the Negotiable Instruments Act.
8. Having heard learned counsel for the parties, this Court
is of the view that besides a mistake being committed by the learned
counsel appearing for the appellant before the Court of learned
Additional Sessions Judge-III, Kangra at Dharamshala (Camp at
Baijnath), the impugned order demonstrates that the same has been
passed by the said Court without any due application of mind.
Learned Appellate Court erred in not appreciating that the appellant
before it was suffering a conviction and withdrawal of the appeal in
lieu of settlement of the issue was of no assistance to the appellant.
In these circumstances, the learned Court ought to have had
sensitized the appellant before it through his counsel as to what
would be the effect of withdrawal of the appeal. Not only this, it
.
appears that when the impugned order was passed by the learned
Appellate Court, it mistook the appellant to be the complainant as
the order passed is to the effect that learned counsel for the
appellant stated that he did not intend to pursue the appeal as the
appellant had received the entire amount. Learned Appellate Court
erred in not appreciating that in his statement which learned
counsel for the appellant had got recorded before the said Court,
what said stated by the learned counsel was that the appellant had
"paid the full and final consideration amount of the respondent".
9. In this background, this Court is of the view that this is
a fit case wherein this Court has to invoke its inherent jurisdiction
vested under Section 482 of the Criminal Procedure Code in order to
ensure that injustice is not meted out to the petitioner.
10. Herein is a typical case where after suffering a judgment
of conviction, the appellant settled the matter with the complainant,
yet he still suffers the conviction on account of the impugned order
which resulted from an unjustified request made by his counsel
before the learned Appellate Court.
11. Therefore, this petition is allowed and as jointly prayed
for, the same is disposed of in the following terms:-
Respondent No.2 is permitted to withdraw the
complainant, which he filed under Section 138 of the Negotiable
Instruments Act, i.e. Criminal Complaint No.49-III/14, titled Vishal
Goswami Versus Rakesh Katoch, decided on 17.04.2015. As a result
of the complaint being permitted to be withdrawn by this Court, the
.
judgment of conviction passed upon the same and the sentence
imposed upon by the learned Trial Court on the basis of said
complaint, is ordered to be set aside so also the order passed by the
Court of learned Additional Sessions Judge-III, Kangra at
Dharamshala (Camp at Baijnath), in Criminal Appeal No.15 of 2016,
titled as Rakesh Katoch Versus Vishal Goswami, on 15.01.2019.
12. At this stage, a joint prayer has been made by the
parties that an amount of Rs.42,000/- which is lying deposited with
the learned Appellate Court concerned, be released in favour of
respondent/complainant. It is ordered that the said amount be
released in his favour. Pending miscellaneous applications, if any,
stand disposed of.
September 14, 2021 (Ajay Mohan Goel)
(rishi) Judge
