________________________________________________ vs Suresh Kumar
2023 Latest Caselaw 13335 HP

                                                  1



           IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                              Criminal Revision No. 218 of 2023




                                                                                        .
                              Decided on: 12.09.2023





           ________________________________________________
           Ram Lal                                 ....Petitioner.
                                 Versus





           Suresh Kumar
                                                 ...Respondent.

           Coram
           The Hon'ble Mr. Justice Sushil Kukreja, Judge.




           Whether approved for reporting?1
           For the petitioner:      r                 Mr. H.S. Rangra, Advocate.

           For the respondent:          Mr. Vedant Ranta, Advocate.

           ________________________________________________
           Sushil Kukreja, Judge (oral)

The instant petition has been filed by the

petitioner-accused under Section 397/401 of the Code of

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

dated 03.01.2023, passed by the learned Sessions Judge

Mandi, District Mandi, H.P., in criminal Appeal No. 39 of

2022, whereby the judgment of conviction, dated 28.06.2022,

and order of sentence, dated 05.07.2022, passed by the

learned Chief Judicial Magistrate, Mandi, District Mandi, H.P.,

CIS CNR No. HPMA02-002823-2017, convicting the

accused-petitioner, 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-Ram Lal, being known to the

complainant-Suresh Kumar, borrowed Rs.3,00,000/- from the

him and in order to liquidate his financial liability, he issued

cheque bearing No. 283917, dated 21.08.2017, amounting to

Rs.3,00,000/-. However, the aforesaid cheque, on being

presented for encashment, was dishonored by the banker of

the accused with remarks "funds insufficient and drawer's

signatures differ". Thereafter, on 15.11.2017, the

complainant issued a legal notice to the accused demanding

his money, but the accused failed to make the payment.

Subsequently, 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 six

months and to pay a sum of Rs.3,50,000/- 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.

6. Subsequently, the accused-petitioner, maintained

the instant petition with a prayer to quash and set-aside the

impugned judgments and order of sentence and to acquit

7. to him for the offence alleged against him.

During the pendnecy of the instant petition, an

application (Cr.MP No. 3093 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 judgment of conviction and order of sentence passed

by the learned Trial Court, which was affirmed by the learned

Lower Appellate Court.

8. Today, complainant-Suresh Kumar as well as the

petitioner-Ram Lal are present in person before this Court

and the statement of complainant, who is duly represented

and identified by Mr. Vedant Ranta, Advocate, is separately

recorded and placed on the file.

9. In his statement, complainant-Suresh Kumar

stated that on the basis of his complaint under Section 138 of

.

the NI Act, bearing Criminal Complaint No. 708-III/2017, titled

as Suresh Kumar vs. Ram Lal, the learned Chief Judicial

Magistrate mandi, District Mandi, H.P., convicted the

petitioner-accused, vide judgment of conviction dated

28.06.2022 and order of sentence dated 05.07.2022 and was

sentenced to undergo simple imprisonment for a period of six

months and to pay compensation of Rs.3,50,000/-, which

was affirmed by the learned Sessions Judge Mandi, District

Mandi, H.P., vide judgment dated 03.01.2023. He has

further stated that now during the pendency of the instant

petition, the matter has been settled between the parties

outside the Court. He has also stated that he has no

objection in case judgment of conviction dated 28.06.2022

and order of sentence dated 05.07.2022, passed by the

learned Chief Judicial Magistrate, Mandi, Distict Mandi, H.P.,

which was affirmed by the learned Sessions Judge, Mandi,

District Mandi, H.P., vide judgment dated 03.01.2023, are

quashed and set-aside and the petitioner-accused is

acquitted of the charge under Section 138 of the NI Act.

10. I have heard the learned Counsel for the

petitioner-accused, learned counsel for the respondent the

.

respondent/complainant and examined the entire records.

11. Having taken note of the fact that during the

pendency of the instant petition, the matter has been settled

between the parties outside the Court 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.

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."

12. 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."

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

after being convicted under Section 138 of the Act, has

settled the matter with the respondent-complainant outside

the Court, prayer for compounding the offence can be

accepted in terms of the aforesaid judgments passed by the

Hon'ble Apex Court.

14. 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.

15. Accordingly, the present matter is ordered to be

compounded and the impugned judgment of conviction,

dated 28.06.2022 and order of sentence, dated 05.07.2022,

passed by the learned Chief Judicial Magistrate Mandi,

District Mandi, H.P., in CIS CNR No. HPMA02-002823-2017,

and affirmed by learned Sessions Judge, Mandi, District

Mandi, H.P., in Criminal Appeal No. 39 of 2022, vide

judgment dated 03.01.2023, are quashed and set-aside and

the petitioner-accused is acquitted of the charge framed

against him under Section 138 of the Act.

16. In view of the submission of learned counsel for

the resrespondent-complainant, an amount of Rs.1,05,000/-,

which had been deposited by the petitioner-accused, before

the learned Sessions Judge Mandi, District Mandi, H.P., is

ordered to be released in favour of the respondent-

complainant, after due verfication.

17. Undisputedly, the cheque amount is of

Rs.3,00,000/- however, the learned counsel for the petitioner

.

submitted that the petitioner is a poor person and the

imposition of compounding fee may be reduced.

18. 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:-

                      r             to
                            "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."

19.

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.15,000 (rupees fifteen thousand), i.e., 5% of the cheque

amount, only with the District Legal Services Authority Mandi,

District Mandi, H.P., within four weeks from today.

20. The petition stands disposed of accordingly, so

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

                                                ( Sushil Kukreja )
      th
    12 September, 2023                               Judge
           (virender)