Sukhdev Singh Mankotia vs Jugal Kishore
2023 Latest Caselaw 15723 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                        Criminal Revision No. 298 of 2023
                         Decided on: 09.10.2023




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    ________________________________________________





    Sukhdev Singh Mankotia                   ....Petitioner
                           Versus
    Jugal Kishore                          ...Respondent





    Coram
    The Hon'ble Mr. Justice Sushil Kukreja, Judge.
    Whether approved for reporting?1





    For the petitioner:                       Mr. Sanjeev K. Suri,
                                              Advocate.

    For the respondent:          Mr. Y.P. Sood, Advocate.

    ________________________________________________
    Sushil Kukreja, Judge (oral)

The instant petition has been filed by the

petitioner-accused under Section 397, read with Section 401

of the Code of Criminal Procedure (for short 'Cr.P.C.')

against judgment dated 01.05.2023, passed by learned

Sessions Judge, Una, District Una, H.P., in Criminal Appeal

No. 12/2023, whereby the judgment of conviction dated

20.12.2022 and order of sentence dated 21.12.2022, passed

by learned Additional Chief Judicial Magistrate, Court No. 1,

Una, District Una, H.P., in Case No. 203-II-2020, was

affirmed.

Whether reporters of Local Papers may be allowed to see the judgment?

2. The brief facts, giving rise to the present petition,

can succinctly be summarized as under:

3. The accused-Sukhdev Singh Mankotia in order to

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discharge his legal liability towards the complainant-Jugal

Kishore for returning his advance and damages on account

of his failure to execute the sale deed on or before

10.09.2017, as per Sale Agreement dated 11.07.2017,

whereby, he had received an advance amount of Rs.

2,00,000/- from the complainant, issued a cheque No.

000018, dated 10.08.2020, amounting to Rs. 2,30,000/-,

drawn at HDFC Bank, Branch Una, District Una, H.P. in

favour of the complainant. The accused also sought time

upto 10.09.2020 for clearance of the cheque. When the

accused did not return the amount upto 10.09.2020, the

complainant presented the aforesaid cheque in the bank of

the accused, however, the cheque on its presentation in the

bank was returned with the report that "drawers signatures

differs". Thereafter, the complainant served legal notice,

dated 22.09.2020 upon the accused through registered post

vide postal receipt, dated 22.09.2020, which was received by

the accused on 23.09.2020. However, despite receipt of the

legal notice, the accused had not made the payment to the

complainant. Resultantly, the complainant filed a complaint

under Section 138 of the Negotiable Instruments Act

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(hereinafter, for the sake of brevity, referred to as the "NI

Act") before the learned Trial Court.

4. The learned Trial Court after conclusion of the

trial convicted the accused under Section 138 of the NI Act

and sentenced him to undergo simple imprisonment for a

period of one year and to pay a sum of Rs. 2,65,000/- as

compensation to the complainant.

5. Being dissatisfied, the accused/petitioner/convict

preferred an appeal before the learned Lower Appellate

Court, which was dismissed and the judgment of the learned

Trial Court was upheld. Hence, accused/petitioner/convict-

Sukhdev Singh Mankotia preferred the instant petition under

Section 397, read with Section 401 of Cr.P.C. with a prayer

that his petition may be allowed and the impugned

judgments and order of sentence passed by the learned

Courts below may be set-aside and he be acquitted.

6. During the pendency of the instant petition, an

application (Cr.MP No. 3245 of 2023) under Section 147 of

the NI Act has been filed by the petitioner-accused seeking

permission of this Court to compound the offence by setting-

aside the judgment of conviction, dated 20.12.2022, and

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order of sentence dated 21.12.2022, passed by learned

Additional Chief Judicial Magistrate, Court No. 1, Una,

District Una, H.P., in Case No. 203-II-2020 and affirmed vide

judgment dated 01.05.2023, passed by learned Sessions

Judge, Una, H.P., in Criminal Appeal No. 12/2023.

7. Today, the statement of learned counsel for the

complainant-respondent has been recorded and separately

placed on the file.

8. In his statement, the learned counsel for the

complainant-Jugal Kishore Sharma has stated that since the

amount of compensation, as ordered by the learned trial

Court has been deposited by the petitioner-accused, under

instructions received from the complainant-respondent, he is

authorized to compound the matter and the complainant-

respondent, has no objection in case the judgment of

conviction dated 20.12.2022 and order of sentence dated

21.12.2022, passed by learned Additional Chief Judicial

Magistrate, Court No. 1, Una, District Una, H.P. and affirmed

by learned Sessions Judge, vide judgment dated 01.05.2023

is quashed and set aside and the petitioner-accused is

acquitted of the offence under Section 138 of the N.I. Act.

.

9. I have heard the learned counsel for the parties

and have also gone through the material available on record.

10. Having taken note of the fact that the petitioner-

accused has deposited the compensation amount and the

respondent-complainant has no objection in compounding

the offence, therefore, this Court sees no impediment in

accepting the prayer made on behalf of the accused-

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 the Hon'ble

Apex Court has held as under:-

"10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:-

"147. Offences to be compoundable- Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable."

At this point, it would be apt to clarify that in view of the non-obstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of

.

Criminal Procedure (hereinafter "CrPC") will not be

applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.

11. So far as the CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the Court. Sub-section (1) of Section 320 enumerates

the offences which 9 are compoundable without the leave of the Court, while subsection (2) of the said section specifies the offences which are compoundable with the leave of the Court.

12. Section 147 of the Negotiable Instruments

Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which

states that 'No offence shall be compounded except as provided by this Section'. A bare reading of this provision would lead us to the inference that

offences punishable under laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of

an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries

a non obstante clause."

11. In K. Subramanian Vs. R. Rajathi; (2010) 15

Supreme Court Cases 352, it has been held by the

Hon'ble Apex Court that in view of the provisions contained

in Section 147 of the Act read with Section 320 of Cr.P.C.,

compromise arrived at can be accepted even after

recording of the judgment of conviction. The relevant portion

of the judgment is reproduced as under:-

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"6. Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner has produced an affidavit sworn by him on 1.12.2008.

The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs. 4,52,289 due under the dishonoured cheques in full discharge of the value of cheques and he is not willing

to prosecute the petitioner.

7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.7.2008 and has undergone the sentence imposed on him by

the trial Court and confirmed by the Sessions Court, the High Court as well as by this Court. The two affidavits

sought to be produced by the petitioner as additional documents would indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which

he has received a sum of Rs.4,52,289. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings.

8. Having regard to the salutary provisions of

Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be

permitted to compound the offence committed by him under Section 138 of the Code."

12. Since, in the instant case, the petitioner-accused

after being convicted under Section 138 of the Act, has

compromised the matter with the complainant and has

deposited the compensation amount, as ordered by the

learned trial Court, prayer for compounding the offence can

be accepted in terms of the aforesaid judgments passed by

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the Hon'ble Apex Court.

13. Therefore, in view of the detailed discussion

made hereinabove as well as law laid down by the Hon'ble

Apex Court, the application is allowed and matter is ordered

to be compounded.

14. Accordingly, the present matter is ordered to be

compounded and the impugned judgment of conviction,

dated 20.12.2022 and order of sentence dated 21.12.2022,

passed by the learned Additional Chief Judicial Magistrate,

Court No. 1, Una, District Una, H.P., in Case No. 203-II-2020

and affirmed by learned Sessions Judge Una, District Una,

H.P., vide judgment dated 01.05.2023, in Criminal Appeal

No. 12/2023, is quashed and set-aside and the petitioner-

accused is acquitted of the charge framed against him under

Section 138 of the Act. Bail bonds, if any, stand discharged.

15. Undisputedly, the total amount of cheque is

Rs.2,30,000/-, however, the learned counsel for the

petitioner submitted that the petitioner is a poor person and

the imposition of compounding fee may be reduced.

16. In case K. Subramanian vs. R. Rajathi (supra),

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the Hon'ble Apex Court had issued the guidelines with

respect to the imposition of compounding fee, which read as

under:-

"THE GUIDELINES

(i) In the circumstances, it is proposed as follows:

(a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second

hearing of the case and that if such an application is

made, compounding may be allowed by the Court without imposing any costs on the accused.

(b) If the accused does not make an application for compounding as aforesaid, then if an application for

compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be

deposited as a condition for compounding with the Legal Services Authority, or such authority as the Curt deems fit.

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in

revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

... ... ... ... ... ... ...

25. The graded scheme for imposing costs is a means to encourage compounding at an early

stage of litigation. In the status quo, valuable time of the court is spent on the trial of these cases and the parties are not liable to pay any court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the

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private parties. Even though the imposition of

costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent court can of course reduce the costs with regard to the

specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end."

17. Therefore, taking into consideration the law laid

down by the Hon'ble Apex Court (supra) and the financial

condition of the petitioner, as he is a poor person, since the

competent Courts can reduce the compounding fee with

regard to the specific facts and circumstances of the case,

the petitioner is directed to deposit token compounding fee of

Rs. 10,000/- (rupees ten thousand), only with the State Legal

Services Authority, Shimla, H.P., within four weeks from

today.

18. The petition stands disposed of accordingly, so

also the pending miscellaneous application(s), if any.

                                             ( Sushil Kukreja )
     th
    9 October, 2023                               Judge
             (virender)