Raghubir Singh vs Dinesh Kumar & Another
2023 Latest Caselaw 16283 HP

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    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                         Criminal Revision No. 10 of 2023
                        Decided on: 13.10.2023
    ________________________________________________




                                                                               .
    Raghubir Singh                            ....Petitioner





                            Versus
    Dinesh Kumar & another                  ...Respondent





    Coram
    The Hon'ble Mr. Justice Sushil Kukreja, Judge.
    Whether approved for reporting?1
    For the petitioner:                       Mr. Naveen K. Bharwaj,





                                              Advocate.

    For respondent No. 1:r                    Mr. Sanjay Jaswal, Advocate.

    For respondent No. 2/State: Mr. B.N. Sharma, Additional
                                 Advocate General.

    ________________________________________________
    Sushil Kukreja, Judge (oral)

The instant petition has been filed by the

petitioner-accused under Sections 397 and 401 of the Code

of Criminal Procedure (for short 'Cr.P.C.') against judgment

dated 14.12.2022, passed by the learned Sessions, Kangra,

at Dhramshala, District Kangra, H.P., in Criminal Appeal No.

26-K/X/2018, whereby the judgment of conviction, dated

12.06.2018, and order of sentence, dated 11.09.2018,

passed by the learned Additional Chief Judicial Magistrate,

Court No. 1, Kangra, H.P., 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. During the month of September, 2014, the

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accused-Raghubir Singh purchased a Tractor Trolley, a

thrashing machine and other equipments from the

complainant-Dinesh Kumar, for a sum of Rs.2,80,000/-, out

of which the accused made payment of Rs.30,000/- to the

complainant. For the balance payment, the accused assured

the complainant to make the same in the month of

December, 2014. The accused, in order to liquidate his

financial liability towards the complainant, issued a cheque

No. 565153, dated 02.12.2014, amounting to Rs.2,50,000/-,

drawn at Punjab National Bank, Kangra, District Kangra,

H.P.. However, the aforesaid cheque, on being presented

for encashment, was dishonored with remarks "insufficient

funds". Thereafter, the complainant immediately

approached the accused, but the accused made excuses.

Ultimately, on 12.12.2014, the complainant served a legal

notice upon the accused, but despite service of 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 (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

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trial convicted the accused under Section 138 of the NI Act

and sentenced him to undergo simple imprisonment for a

period of six months and to pay a sum of Rs.3,20,000/- 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-

Raghubir Singh preferred the instant petition under Sections

397 and 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, a

joint application (Cr.MP No. 3866 of 2023) under Section 147

of the NI Act read with Section 320 Cr.P.C. has been filed by

the petitioner-accused and the complainant-respondent

seeking permission of this Court to compound the offence by

setting-aside the judgment of conviction, dated 12.06.2018,

and order of sentence dated 11.09.2018, passed by learned

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

H.P. in Criminal Case No. 203-II/2015, and affirmed vide

.

judgment dated 14.12.2022, passed by learned Sessions

Judge, Kangra at Dhramshala, District Kangra, H.P., in

Criminal Appeal No. 26-K/X/2018.

7. Today, the complainant-Shri Dinesh Kumar is

present before this Court and his statement has been

recorded and separately placed on the file.

8. In his statement, the complainant-Dinesh Kumar

stated that he had filed a complaint against the petitioner

under Section 138 of the NI Act, bearing Criminal Case No.

203-II/2015, titled Dinesh Kumar vs. Raghubir Singh, before

the Court of learned Additional Chief Judicial Magistrate,

Kangra, District Kangra, H.P., and the learned Trial Court

had convicted the petitioner-accused, vide judgment of

conviction dated 12.06.2018 for commission of the offence

under Section 138 of the NI Act and sentenced him to

undergo simple imprisonment for a period of six months and

to pay compensation of Rs.3,20,000/-, vide order dated

11.09.2018, and the learned Sessions judge, Kangra at

Dharamshala, District Kangra, H.P., had affirmed the findings

of the learned Trial Court, vide judgment dated 14.12.2022.

He has further stated that during the pendency of the present

revision petition, he had compromised the matter with the

.

petitioner-accused, vide compromise deed, Annexure-A. He

has also stated that in view of the aforesaid compromise he

does not intend to pursue his complaint under Section 138 of

the NI Act and has no objection in case the judgment of

conviction dated 12.06.2018 and order of sentence dated

11.09.2018, passed by the learned Additional Chief Judicial

Magistrate, Nadaun, District Hamirpur, H.P., and affirmed by

the learned Appellate Court, vide judgment dated

14.12.2022, are quashed and set-aside and the petitioner-

accused is acquitted of the offence punishable under Section

138 of the NI 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 and the complainant-respondent 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

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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:-

"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, 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 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 12.06.2018, and order of sentence dated 11.09.2018,

passed by the learned Additional Chief Judicial Magistrate,

Court No. 1, Kangra, H.P., in Criminal Case No. 203-II/2015,

and affirmed by learned Sessions Judge, Kangra at

Dharamshala, Distrtict Kangra, H.P., in Criminal Appeal No.

26-K/X/2018, vide judgment dated 14.12.2022, 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. The learned First Appellate Court is directed to

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release the amount, if any, deposited by the petitioner-

accused, in favour of the complainant-respondent, after due

verification.

16. Undisputedly, the total amount of the cheque is

Rs.2,50,000/-, however, the learned counsel for the

petitioner submitted that the petitioner is a poor person and

the imposition of compounding fee may be reduced.

17. 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

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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."

18. 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 District

Legal Services Authority, Dharamshala, Kangra, H.P., within

four weeks from today.

19. The petition stands disposed of accordingly, so

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

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




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