Yog Raj vs Mahender Singh
2023 Latest Caselaw 15822 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                       Criminal Revision No. 494 of 2023
                       Decided on: 10.10.2023




                                                                               .
    ________________________________________________





    Yog Raj                                 ....Petitioner.
                          Versus
    Mahender Singh                        ...Respondent.





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





    For the petitioner:                       Mr. Gurmeet Bhardwaj,
                                              Advocate.

    For the respondent:          Mr. Raj Thakur, 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 04.01.2022, passed by the learned

Additional Sessions Judge, Sundernagar, District Mandi,

H.P., in Criminal Appeal No. 169 of 2019, whereby the

judgment of conviction dated 13.08.2019, and order of

sentence dated 26.08.2019, passed by learned Additional

Chief Judicial Magistrate, Court No. 1, Sundernagar, District

Mandi, H.P., in Criminal Case No. 323-I/2017, 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 complainant-Mahinder Singh Thakur

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(respondent herein) filed a complaint against the accused-

Yog Raj (petitioner herein), before the learned Trial Court,

alleging that on 18.08.2017 the petitioner-accused issued a

cheque, bearing No. 242653, amounting to Rs.96,500/-,

drawn at State Bank of India, Branch Bhojpur, Sundernagar,

District Mandi, H.P., in favour of the complainant. However,

the aforesaid cheque, on being presented for encashment,

was dishonored with the remarks "funds insufficient".

Subsequently, the complainant issued legal notice to the

petitioner-accused demanding his amount, but the petitioner-

accused did not make any payment to the complainant within

the stipulated time. Therefore, the complainant filed a

complaint under Section 138 of the Negotiable Instruments

Act (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 three months and to pay a sum of Rs.1,25,000/- 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-

Yog Raj preferred the instant petition under Section 397 read

with Section 401 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. 3585 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 13.08.2019, and

order of sentence dated 26.08.2019, passed by learned

Additional Chief Judicial Magistrate, Court No. 1,

Sundernagar, District Mandi, H.P., in Criminal Case No. 323-

I/2017, and affirmed vide judgment dated 04.01.2022,

passed by learned Additional Sessions Judge, Sundernagar,

District Mandi, H.P., in Criminal Appeal No. 169 of 2019.

7. Today, complainant-Shri Mahender Singh, is

present in person before this Court and his statement is

separately recorded and placed on the file.

.

8. In his statement, complainant-Shri Mahender

Singh stated that he has filed the complaint under Section

138 of the NI Act against the petitioner-accused before the

Court of learned Additional Chief Judicial Magistrate, Court

No. 1, Sundernagar, District Mandi, H.P., and vide judgment

of conviction dated 13.08.2019 and order of sentence dated

26.08.2019, the petitioner-accused was convicted under

Section 138 of the NI Act and sentenced to undergo simple

imprisonment for a period of three months and also to pay a

compensation of Rs.1,25,000/-. He has further stated that

now, during the pendency of the instant petition, he has

settled the matter with the petitioner-accused, as the total

compensation amount has been received by him, as per

receipt Annexure A-1. He has also stated that in view of the

settlement arrived at between the parties, he has no

objection in case judgment of conviction dated 13.08.2019

and order of sentence dated 26.08.2019, passed by the

learned Additional Chief Judicial Magistrate, Court No. 1,

Sundernagar, District Mandi, H.P., and affirmed by the

learned Additional Sessions judge, Sunderngar, District

Mandi, H.P., is quashed and set-aside and the petitioner-

accused is acquitted of the charge under Section 138 of the

.

NI Act.

9. I have heard the learned Counsel for the

petitioner-accused, learned counsel for the

complainant/respondent and examined the entire records.

10. Having taken note of the fact that the parties

have settled the matter and the 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.

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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:-

"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, as he has

paid the entire amount of compensation to the complainant,

as per receipt dated 08.08.2023, Annexure A-1, annexed

with Cr.MP No. 3585 of 2023, and the complainant has no

objection in compounding the matter, prayer for

compounding the offence can be accepted in terms of the

aforesaid judgments passed by 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 parties are permitted to get the matter

compounded in light of the compromise arrived inter se

them.

14. Accordingly, the present matter is ordered to be

compounded and the impugned judgment of conviction,

dated 13.08.2019, and order of sentence dated 26.08.2019,

passed by the learned Additional Chief Judicial Magistrate,

Court No. 1, Sunderngar, District Mandi, H.P., in criminal

Case No. 323-I/2017, and affirmed by learned Additional

Sessions Judge Sunderngar, District Mandi, H.P., in Criminal

Appeal No. 169 of 2019, 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.96,500/- 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),

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 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. 4,825/- (rupees four thousand eight hundred twenty five),

i.e., 5% of the cheque amount, only with the District Legal

Services Authority, Shimla, within four weeks from today.

18. The petition stands disposed of accordingly, so

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

                                                ( Sushil Kukreja )
      th
    10 October, 2023                                 Judge





           (virender)