Himachal Pradesh High Court
Between vs Yagya Dutt Sharma on 3 January, 2022
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 3rd DAY OF JANUARY, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL REVISION No.451 OF 2019
Between:
ANUJ SOOD,
S/O SHRI DURGA DASS,
R/O ANUJ KARYANA STORE,
RAJAGARH, NEAR OLD BUS
STAND RAJGARH,
POST OFFICE RAJGARH,
TEHSIL RAJGARH,
DISTRICT SIRMOUR, H.P.
r ....PETITIONER
(BY MR. N.K.TOMAR,
ADVOCATE)
AND
1. YAGYA DUTT SHARMA,
S/O SHRI JALAM SINGH,
R/O VILLAGE BARAILA,
PO DAHAN, TEHSIL RAJGARH,
DISTRICT SIRMOUR, H.P.
2. THE STATE OF HIMACHAL PRADESH.
....RESPONDENTS
(BY MR. MUNISH
DATWALIA, ADVOCATE, FOR R-1)
(BY MR. SUDHIR BHATNAGAR
AND MR. ARVIND SHARMA,
ADDITIONAL ADVOCATES GENERAL,
WITH MR. NARENDER THAKUR,
MR. GAURAV SHARMA AND
MR. KAMAL KISHORE SHARMA,
DEPUTY ADVOCATES GENERAL,
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2
FOR THE STATE)
.
Whether approved for reporting?.
This petition coming on for orders this day, the Court passed the following:
ORDER
Instant criminal revision petition filed under Section 397/ 401
of Cr.PC, lays challenge to judgment dated 29.8.2019, passed by the
learned Sessions Judge, Sirmour District at Nahan, HP, in Criminal Appeal
No. 84-Cr.A/10 of 2018, affirming judgment of conviction and order of
sentence dated 5.9.2018, passed by the learned Judicial Magistrate First
Class, Rajgarh, District Sirmour, H.P., in Criminal Complaint No. 75/3 of
2016, 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 one year and pay
compensation to the tune of Rs. 2,00,000/- 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 Judicial Magistrate First Class, Sirmour,
alleging therein that complainant-respondent on the request of accused,
who had friendly relations with him, advanced sum of Rs. 1,70,000/- to the
accused on 20.2.2016 at Rajgarh. Accused with a view to discharge his
liability, issued cheque in his favour, but fact remains that aforesaid
.
cheque on its presentation, was dishonoured. 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 5.9.2018, 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.
4. Being aggrieved and dissatisfied with the aforesaid judgment of
conviction recorded by the court below, accused preferred an appeal in the
court of learned Sessions Judge, Sirmaur District at Nahan, H.P., which
also came to be dismissed vide judgment dated 29.8.2019, 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 7.11.2019, this Court, while suspending the
substantive sentence imposed by the court below, directed the accused to
deposit the compensation amount, within a period of six weeks. Accused
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has already deposited sum of Rs. 60,000/- in the learned trial court, but
before matter could be heard and decided on its own merits, parties have
resolved to settle their dispute amicable inter-se them, whereby entire sum
of Rs. 2,00,000/- as has been awarded by the learned trial court, has been
agreed to be paid by the accused to the respondent-complainant.
6. Today, during the proceedings of the case, Mr. N.K. Tomar
learned counsel appearing for the petitioner, states that sum of Rs.
1,40,000/- has been already paid to the respondent-complainant and sum
of Rs. 60,000/-, which is lying deposited before the learned trial court, has
been agreed to be released in favour of the complainant. He states that
since entire amount of compensation i.e. Rs.2,00,000/-, 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. Munish Datwalia, learned counsel appearing on behalf of
the respondent-complainant while fairly admitting factum with regard to
receipt of Rs. 1,40,000/-states that in case amount lying deposited with the
Registry of this court as well as the court below, is ordered to be released in
favour of the complainant, he shall have no objection in case prayer made
in the instant petition for compounding offence is accepted.
8. Having taken note of the fact that entire amount of
.
compensation stands paid or agreed to be paid to the respondent-
complainant and respondent has no objection in compounding the offence,
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
29.8.2019 and 5.9.2018, 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, if any, is vacated. Bail bonds, if
any, discharged. Court below is directed to release the amount i.e. Rs.
60,000/- deposited by the accused in the instant case, in favour of the
complainant by remitting the same in his saving bank account, detail whereof
shall be furnished by the learned counsel for the complainant, within ten days.
Since respondent-complainant was unnecessarily dragged to institute the legal
proceedings against the accused that too for realization of his own money, this
court deems it fit to direct the accused to pay sum of Rs. 10,000/- to the
.
respondent as litigation cost, payable within three weeks. Ordered accordingly.
It is made clear that in case, aforesaid amount of Rs. 10,000/- is not paid
within the time stipulated by this court, accused besides rendering himself
liable for penal consequences would also invite contempt proceedings.
Accordingly, the petition is disposed of alongwith pending applications, if any.
3rd January, 2022
(manjit)
r to (Sandeep Sharma),
Judge
