________________________________________________ vs Dola Singh & Another
2023 Latest Caselaw 13571 HP

                                                  1



           IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                Criminal Revision No. 179 of 2023




                                                                                        .
                                Decided on: 14.09.2023





           ________________________________________________
           Hari Parkash                              ....Petitioner.
                                   Versus





           Dola Singh & another                   ...Respondents.

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


           For respondent No. 1:
                                    r                 to
                                                      Mr. Sudhir Bhatnagar,
                                                      Advocate.

                                                      Mr. Kunal Thakur, 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 Section 397 read with Section 401

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

judgment dated 24.11.2022, passed by learned Sessions

Judge Kullu, in Criminal Appeal No. 15 of 2022, whereby the

appeal of the petitioner-accused preferred against the

judgment of conviction and order of sentence, dated

14.03.2022, passed by learned Judicial Magistrate First

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

Class Banjar, District Kullu, H.P., in Case No. 303/19/2010,

was affirmed.

.

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

can succinctly be summarized as under:

3. The complainant-Dola Singh was given the job of

channelization of water from the dam at Larjee and lot of

sand had been removed from the dam by the complainant.

The accused-Hari Prakash, during the month of February,

2010, approached the complainant and requested to sell the

same to him at the rate of Rs.100/- per tractor. The

complainant acceded to the request of the accused and sold

1805 tractors of sand to him and the accused in order to

liquidate his financial liability towards the complainant issued

cheque bearing No. 056384, dated 01.03.2010, amounting to

Rs.1,80,500/-. However, the aforesaid cheque, on being

presented for encashment, was dishonored with remarks

"insufficient funds", vide memo dated 03.05.2010.

Therefore, the complainant served the accused with legal

notice, dated 19.05.2010, demanding his amount, but the

accused failed to repay the amount of the cheque within the

stipulated period, hence, the complainant filed a complaint

under Sections 138 of the Negotiable Instruments Act, 1881

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

.

against the accused 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 two months and to pay compensation of

5. to Rs.2,00,000/- to the complainant.

Being dissatisfied, the accused/convict preferred

an appeal before the learned Lower Appellate Court, which

was dismissed and the judgment of the learned Trial Court

was upheld, hence, petitioner/accused/convict-Hari Prakash

preferred the instant petition under Sections 397 read with

Section 401 Cr.P.C. with a prayer that his petition may be

allowed and the impugned judgment and order of sentence,

passed by learned Trial Court and affirmed by learned Lower

Appellate Court below, may be set-aside and he be

acquitted.

6. During the pendnecy of the instant petition, an

application (Cr.MP No. 3385 of 2023) under Section 482 of

Cr.P.C. read with Section 147 of the NI Act has been filed by

the petitioner-accused seeking permission of this Court to

compound the offence and quash and set-aside judgment

.

dated 24.11.2022, passed by learned Sessions Judge, Kullu,

District Kullu, H.P., in Criminal Appeal No. 15 of 2022, and

the judgment of conviction and order of sentence dated

14.03.2022, passed by learned Judicial Magistrate First

Class Banjar, District Kullu, H.P., in Case No. 303/19/2010,

7. to and the petitioner be acquitted.

Today, complainant-Dola Singh as well as the

petitioner-Hari Parkash are present in person before this

Court and the statement of complainant, who is duly

represented and identified by Mr. Kunal Thakur, Advocate, is

separately recorded and placed on the file.

8. In his statement, the complainant-Dola Singh,

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

the NI Act, the petitioner was convicted by the Court of

learned Judicial Magistrate First Class, Banjar, District Kullu,

H.P., vide judgment of conviction and order of sentence

dated 14.03.2022, and was sentenced to undergo simple

imprisonment for a period of two months and to pay

compensation of Rs.2,00,000/- which was affirmed by the

learned Sessions Judge, Kullu, District Kullu, H.P., vide

judgment dated 24.11.2022. He has further stated that now

.

during the pendency of the present revision, they have

settled the matter outside the Court, as out of the total

amount of compensation of Rs.2,00,000/- awarded by the

learned Trial Court, a sum of Rs.40,000/- has been deposited

by the petitioner in the learned Trial Court and the remaining

amount has been received by him. He has also stated that

he has no objection in case judgment of conviction and order

of sentence dated 14.03.2022, passed by the learned

Judicial Magistrate First Class, Banjar, District Kullu, H.P.,

which was affirmed by the learned Sessions Judge, Kullu,

District Kullu, H.P., vide judgment dated 24.11.2022, are

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 respondent No.

1/complainant, learned Additional Advocate General for

respondent No. 2/State and examined the entire records.

10. Having taken note of the fact that out of the entire

amount of compensation, i.e., Rs.2,00,000/-, the petitioner-

accused has deposited Rs.40,000/- before the learned Trial

Court and the remaining amount has been paid by the

.

petitioner-accused to the complainant 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."

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

already deposited Rs.40,000/- before the learned Trial Court

and remaining amount has been paid by the petitioner-

accused to 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 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 and

order of sentence dated 14.03.2022, passed by the learned

Judicial Magistrate First Class Banjar, District Kullu, H.P., in

Case No. 303/19/2010, and affirmed by learned Sessions

Judge Kullu, District Kullu, H.P., vide judgment dated

24.11.2022, in Criminal Appeal No. 15 of 2022, are 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 Trial Court is directed to release the

amount, which had been deposited by the accused-

petitioner, in favour of the complainant-Dola Singh, after due

verification.

16. Undisputedly, the total amount of the cheque is

Rs.1,80,5000/-, 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 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.9,025/- (rupees nine thousand twenty five), i.e., 5% of the

cheque amount, only with the District Legal Services

Authority, Kullu, District Kullu, H.P., within four weeks from

today.

19. The petition stands disposed of accordingly, so

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

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