Sh. Ram Chand Thakur vs Ram Chand
2022 Latest Caselaw 8464 HP

         IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                    ON THE 13TH DAY OF OCTOBER, 2022

                                       BEFORE

                   HON'BLE MR. JUSTICE SANDEEP SHARMA




                                                                      .

                     CRIMINAL REVISION NO. 414 OF 2019

Between:-





SH. RAM CHAND THAKUR S/O SH.
LACHHMUI RAM, R/O VILL. PANESH, PO
GHANAHATI, TEHSIL & DISTT. SHIMLA, H.P.

                                                                    ... PETITIONER





(BY MR. RAVINDER               SINGH     JASWAL,
ADVOCATE)

AND                       r
MS. NEELAM SHARMA D/O SH. RAM LAL

SHARMA R/O VILL. KUSHAH, PO NEHRAH,
TEHSIL & DISTT. SHIMLA, HP.
                                                                    RESPONDENT
(BY MR. J.R. POSWAL, ADVOCATE)


Whether approved for reporting: .

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




                                   O R D E R

By way of instant criminal revision petition filed under

Section 397 of Cr.PC, challenge has been laid to judgment dated

9.9.2019 passed by learned Sessions Judge, Shimla in Criminal

Appeal No. 46­S/10 of 2018, affirming judgment of

conviction/sentence dated 9.10.2018/11.10.2018, passed by learned

Judicial Magistrate Ist Class, Court No.7 in case titled as Ms.

Neelam Sharma Vs. Ram Chand, whereby learned court below while

holding the accused guilty of having committed offence punishable

under Section 138 of Negotiable Instruments Act, (in short ' NI Act')

convicted and sentenced him to undergo simple imprisonment for a

.

period of six months and pay compensation to the tune of Rs. 3.00

lac to the complainant.

2. Precisely, the facts of the case as emerge from the

record are that respondent­complainant instituted proceedings

under Section 138 of the NI Act in the competent court of law

alleging therein that she approached accused, who at the relevant

time was property dealer, for purchase of plot and construction of

house. She alleged that accused demanded Rs. 4.00 lac for purchase

of plot. Though the sum of Rs. 2.00 lac was paid to the accused but

the accused failed to finalize the plot and in lieu thereof issued

cheque bearing No. 737253 for a sum of Rs. 2.00 lac drawn at State

Bank of India, Ghanahatti, Tehsil and District Shimla, H.P.

However, the fact remains that the aforesaid cheque on its

presentation in the bank, was dishonored on account of 'insufficient

funds'. Since, despite having received legal notice, accused failed to

make the payment good within the time stipulated in the notice,

complainant was compelled to institute case under Section 138 of the

NI Act in the competent court of law, which subsequently on the

basis of pleadings as well as evidence adduced on record by the

parties, held the accused guilty for having committed offence

punishable under Section 138 of the NI Act and accordingly

.

convicted and sentenced him as per description given hereinabove.

3. Being aggrieved and dissatisfied with the aforesaid

judgment of conviction and order of sentence recorded by learned

court below, accused preferred appeal in the court of learned

Sessions Judge, Shimla but the same was dismissed, as such

petitioner approached this Court by way of instant proceedings,

praying therein for his acquittal after setting aside the judgment of

conviction and sentence recorded by learned court below.

4. Vide order dated 17.10.2019, this Court suspended

the substantive sentence imposed by the learned trial court subject

to the petitioner's depositing balance compensation amount in the

Registry of this Court within a period of eight weeks. However, the

fact remains that the aforesaid order never came to be complied

with, as a consequence of which, interim protection granted by this

Court came to an end.

5. During proceedings of the case, petitioner filed an

application bearing No. 2288 of 2022 under Section 482 of Cr.PC,

enclosing therein compromise arrived at inter se parties, whereby

parties resolved to settle their dispute for a sum of Rs. 2.70 lac. Vide

aforesaid application, prayer came to be made on behalf of the

accused that since he has paid entire agreed amount of Rs. 2.70 lac

.

in terms of settlement arrived at inter se parties, this Court, while

exercising powers under S.147 of the Act may proceed to compound

the case. However, on that day, learned counsel representing

accused apprised this Court that despite repeated communications,

no instructions have been imparted to him and as such this Court

may issue notice to the petitioner, returnable for 21.9.2022.

6. Though service of notice for 21.9.2022 is still awaited

but learned counsel for the respondent apprised the Court that

despite issuing registered letter, respondent is not coming forward to

impart instructions, as such this Court is compelled to believe that

respondent is no more interested to pursue the case, as she has

settled the dispute by accepting sum of Rs. 2.70 lac against total sum

of Rs. 3.00 lac awarded by learned trial court.

7. Since, parties have resolved their dispute inter se

them and in terms of compromise, petitioner has already paid Rs.

2.70 lac to complainant, which fact is evident from the compromise

placed on record along with the application, there appears to be no

impediment for this Court to accept the prayer made on behalf of the

petitioner for compounding the offence by exercising the powers

under Section 147 of Cr.PC and in terms of guidelines issued by

Hon'ble Supreme Court in Damodar S. Prabhu v. Sayed Babalal

.

H. (2010) 5 SCC 663, wherein the Hon'ble Supreme Court has

categorically held that Court can proceed to compound the offence

even in those cases, where the accused stands convicted.

8. Consequently, in view of above, present petition is

allowed and judgment and conviction and order and sentence dated

9.10.2018/11.10.2018 passed by learned r Judicial Magistrate Ist

Class, Court No.7, Shimla and further upheld by learned Sessions

Judge in Criminal Appeal No. 46­S/10 of 2018 is quashed and set

aside and petitioner is acquitted of the offence alleged to have been

committed by him under Section 138 of NI Act.

(Sandeep Sharma), Judge

October 13, 2022 (Guleria)