Duni Chand vs And R
2022 Latest Caselaw 7064 HP

          IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                     ON THE 23RD DAY OF AUGUST, 2022

                                      BEFORE

                 HON'BLE MR. JUSTICE SANDEEP SHARMA




                                                                   .

                     CRIMINAL REVISION NO. 23 OF 2021

    Between:-





    DUNI CHAND,
    S/O SH. KANWAL GEER,
    R/O JHARAG,P.O. JHARAG,
    TEHSIL JUBBAL, DISTRICT SHIMLA, HP.





                                                                  .. PETITIONER
    (BY MR. TARUN K. SHARMA, ADVOCATE )

    AND              r
    SH. PUNEET SOOD,
    S/O SH. SHYAM LAL SOOD,

    SHOPKEEPER ROHRU, R/O
    VPO TEHSIL ROHRU, DISTRICT SHIMLA,
    H.P.

                                                                 RESPONDENT


    (BY MS. SUNIL KUMAR, ADVOCATE)

    Whether approved for reporting:




    This petition coming on for orders this day, the court passed the following:
                                   O R D E R

Instant petition filed under Section 397 read with Section

401 Cr.P.C, lays challenge to judgment dated 23.11.2020 passed by

learned Sessions Judge (Forests) Shimla in Cr. Appeal No. 17-R/10 of

2019, affirming judgment of conviction dated 5.07.2019 and order of

sentence dated 29.07.2019 passed by learned Additional Chief Judicial

Magistrate, Court No.1, Rohru, District Shimla, H.P., in criminal case

No.488/3 of 2019/14, whereby learned trial Court, while holding the

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

offence punishable under S. 138 of the Negotiable Instruments Act,

convicted and sentenced him to undergo simple imprisonment for a period

of one year and pay compensation of Rs.90,000 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 the Act in

the competent court of law, alleging therein that accused with a view to

discharge his legal liability, issued cheque No.442740, dated 26.09.2013,

amounting to Rs.64,000/- drawn on the account of the accused. However,

fact remains that aforesaid cheque on its presentation was dishonoured

on account of insufficient funds in the account of the accused. Since

despite having received legal notice, accused failed to make good the

payment within the stipulated time, complainant was compelled to institute

proceedings under S. 138 of the Act in the competent Court of law.

3. Learned trial Court on the basis of evidence adduced on

record by respective parties, held the accused guilty of having committed

offence punishable under S. 138 of Act and convicted and sentenced him

as per description given herein above.

4. Being aggrieved and dissatisfied with judgment of conviction

and order of sentence passed by learned trial Court, accused preferred an

appeal in the court of learned Sessions Judge (Forests), Shimla, which

came to be dismissed vide judgment dated 23.11.2020. 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 passed by both the learned Courts

below.

5. Vide order dated 2.02.2021, this court suspended the substantive

sentence imposed upon the accused by learned trial Court. During the

.

proceedings of the case, learned counsel representing the petitioner

apprised this Court that the petitioner is ready and willing to make the

entire payment of compensation to the complainant and as such, matter

repeatedly came to be adjourned, enabling the petitioner to make the

complete payment to the complainant. On 29.07.2022, this Court was

informed that out of Rs.90,000/- sum of Rs. 74,000/- stands deposited

with the Registry of this Court as well as trial Court and remaining amount

of Rs.16,000/- shall be paid on or before the next date of hearing.

6. Today, Mr. Tarun K. Sharma, learned counsel representing

the petitioner, on the instructions of accused, who is present in court,

states that sum of Rs. 16,000/- has been deposited in the Registry of this

Court. He states that since entire compensation amount as awarded by

the Court below stands deposited with the Registry of this Court as well

as trial Court and petitioner-accused has no objection in getting it

released in favour of the complainant, this Court while exercising power

under Section 147 of the Act, may proceed to compound the offence and

thereafter acquit the petitioner-accused of the charge framed against him

under Section 138 of the Act.

7. Learned counsel for the respondent fairly states that in case

entire amount of compensation lying deposited with the Registry of this

Court as well as trial Court, is ordered to be released in favour of the

complainant, complainant shall have no objection in compounding the

offence.

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

compensation stands deposited by the accused ( Rs.76,000/- in the

.

Registry of this Court and remaining amount of Rs.14000/- before the trial

Court) and respondent-complainant has no objection in getting the matter

compounded in the event of his having received entire amount of

compensation, this court sees no impediment in accepting the prayer

made on behalf of the accused in the petition for compounding of offence

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, wherein Hon'ble Apex Court has 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 above, prayer made on behalf of

the accused is allowed and offence committed by him under S.138 of the

Act is ordered to be compounded. Judgments of conviction and order of

sentence passed by learned courts below, are quashed and set aide.

Accused is acquitted of the offence under S.138 of the Act.

10. Registry of this Court as well as trial Court is directed to

release the compensation amount lying deposited with it in favour of the

complainant, by remitting the same in his savings bank account, details

whereof shall be furnished by learned counsel for the respondent within a

period of one week.

11. Since the complainant was unnecessarily dragged into

litigation for realization of his own money, this Court deems it fit to award

Rs. 10,000/- as litigation charges in favour of the complainant to be paid

by the accused within three months. Ordered accordingly. It is clarified

.

that in case this amount is not paid within the stipulated period, accused

besides rendering himself liable for penal consequences, would also invite

proceedings under Contempt of Courts Act. Liberty is reserved to the

complainant to get this petition revived, in the event of non-payment of

litigation cost, as awarded by this court, so that appropriate action in

accordance with law is taken against the accused.

12. 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 August 23, 2022 (shankar)