Himachal Pradesh High Court

Bhanwar Singh vs H.P. Gramin Bank on 16 September, 2023

Bench: Ranjan Sharma

     IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

                                        Cr. Revision No. 484 of 2023
                                        Decided on: 16.09.2023




                                                                 .

    Bhanwar Singh
                                                             ...Petitioner
                                      Versus





    H.P. Gramin Bank, Branch Bhud, Tehsil
    Baddi, Distt. Solan, H.P. Through Manager
                                                             ...Respondent





    Coram
    Hon'ble Mr. Justice Ranjan Sharma, Judge.
    Whether approved for reporting?
                      r                 Yes.

    For the Petitioner            : Mr. Dinesh Bhanot, Advocate.

    For the respondent            : Mr.  Kul      Bhushan            Khajuria,
                                    Advocate.

    Ranjan Sharma, Judge (Oral)

This Criminal Revision has been filed by

Bhanwar Singh, under Section 397 of Code of Criminal

Procedure against the impugned judgment dated

26.07.2021, in Criminal Appeal No. 19-NL/10 of 2019,

passed by the Additional Sessions Judge, Nalagarh,

District Solan, (H.P) affirming the judgment passed by the

Judicial Magistrate, First Class, Court No.2, Nalagarh,

District Solan, (H.P.) in Criminal Case No. 120/3 of 2012,

convicting the petitioner as per order dated 1.1.2019 and

imposing the sentence of simple imprisonment for a period

of six months under Section 138 of the Negotiable

Instruments Act and since the cheque amount was of

Rs.1,12,882/-, therefore, compensation of Rs.1,15,000/-

was imposed on the petitioner, which was payable to the

complainant within a period of 30 days from the date of

passing of the sentence order on 2.1.2019. The trial Court

was pleased to stay the sentence of imprisonment for

a period of 30 days on furnishing personal bonds with one

surety. r

2. In these proceedings, the case of the petitioner

is that he was precluded from depositing the loan amount

earlier for the reason that the vehicle for which the loan

was raised was confiscated by the Bank and he had no

other source of income. In this context, the petitioner has

prayed that he has paid/deposited the loan amount with

the Respondent-Bank which is clear from the certificate

dated 14.06.2023, therefore, in view of these

circumstances, he has prayed that the present petition

may be allowed and the punishment so imposed may

kindly be set-aside.

3. Records reveal that consequent upon the

affirmation of conviction and sentence by the Appellate

Court on 26.07.2021, the petitioner Bhanwar Singh, has

deposited the payable loan amount with the Respondent-

H.P.Gramin Bank, Branch Bhund, Tehsil Baddi, District

Solan, H.P., which is evident from the certificate dated

14.06.2023 (at page 29 of paper book) issued by Manager,

H.P.Gramin Bank, Branch Bhund, Solan. A perusal of the

certificate reveals that the loan case stands settled under

OTS Scheme (compromise) and no dues are pending

further and the loan account has been closed.

4. Shri Kulbhushan Khajuria, learned Advocate,

appearing for the Respondent-Bank does not dispute the

above position. He states that nothing is due from the

petitioner and the matter can be compounded and the

impugned judgments passed by learned Courts below may

be set aside accordingly.

5. This Court is conscious of the fact that in the

matters relating to compounding of offences under the

Negotiable Instruments Act, 1881 the Hon'ble Apex Court

has laid down certain guidelines in Damodar S. Prabhu

vs. Sayed BabaLal H, (2010) 5 SCC 663 and Para 21,

containing these guidelines is reproduced hereinbelow:-

"21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing

.

costs on parties who unduly delay

compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed

composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for

compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct r that the following guidelines be followed:-

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 Court 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."

5(ii). A perusal of the guidelines stipulate that in

case the offences under the aforesaid statute is

compounded before the Sessions Court or High Court in

Revision or in Appeal then in such cases, compounding

may be allowed on the condition that the accused should

pay 15% of the cheque amount by way of costs.

6. Notably though the guidelines in Damodar

S. Prabhu (supra) have been reiterated by the Hon'ble

Apex Court in Madhya Pradesh State Legal Services

Authority vs. Prateek Jain and another (2014) 10

SCC 690, but at the same time, the Hon'ble Apex

Court has held that these guidelines can be deviated

from either by imposing minimal costs or by waiving

the costs, by recording reasons keeping in view the

specific facts and circumstances of a case. In this context,

Paras 22 and 23 read as under:

"22. What follows from the above is that normally

.

costs as specified in the guidelines laid down

in the said judgment have to be imposed on the accused persons while permitting compounding. There can be departure

therefrom in a particular case, for good reasons to be recorded in writing by the concerned Court. It is for this reason that the Court mentioned three objectives which were

sought to be achieved by framing those guidelines, as taken note of above. It is thus manifestly the framing of "Guidelines" in this judgment was also to achieve a particular r public purpose. Here comes the issue for

consideration as to whether these guidelines are to be given a go-by when a case is decided/settled in the Lok Adalat? Our answer is that it may not be necessarily so

and a proper balance can be struck taking care of both the situations.

23. Having regard thereto, we are of the opinion

that even when a case is decided in Lok Adalat, the requirement of following the

guidelines contained in Damodar S. Prabhu (supra) should normally not be dispensed with. However, if there is a special/specific

reason to deviate therefrom, the Court is not remediless as Damodar S. Prabhu (supra) itself has given discretion to the concerned Court to reduce the costs with regard to specific facts and circumstances of the case, while recording reasons in writing about such variance. Therefore, in those matters where the case has to be decided/settled in the Lok Adalat, if the Court finds that it is a result of positive attitude of the parties, in such

appropriate cases, the Court can always reduce the costs by imposing minimal costs or even waive the same. For that, it would be for the parties, particularly the accused

.

person, to make out a plausible case for the

waiver/reduction of costs and to convince the concerned Court about the same. This course of action, according to us, would strike a

balance between the two competing but equally important interests, namely, achieving the objectives delineated in Damodar S. Prabhu (supra) on the one hand and the public interest which is sought

to be achieved by encouraging settlements/ resolution of case through Lok Adalats on the r other hand."

(Emphasis supplied)

7. While deciding a Criminal Appeal No. 1005

of 2019, titled as M. Syed Jaheer Hussain vs. A.K.

Mohammed Farook, dated 05.07.2019, the Hon'ble Apex

Court has set aside the conviction and sentence, on

amount being deposited in Court by the accused which

was also released to the complainant. The operative part of

the judgement dated 05.07.2019 in case of M.Syed Jaheer

Hussain (supra) reads as under:

"The appellant was convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, 1981 by the High Court and sentenced to undergo 6 months imprisonment with fine/ compensation in the sum of Rs.1,50,000/- (Rupees one lakh fifty thousand only).

By virtue of order dated 13.02.2019 passed by learned Chamber Judge of this Court, a sum of Rs.3,00,000/- (Rupees three lakhs only) was deposited in the Court of the

.

Judicial Magistrate, Tiruchirappalli. Notice

was issued thereafter.

We have heard learned counsel for the parties.

In our considered view, the ends of justice would be met if the conviction recorded by the High Court is set-aside subject to the condition that the amount

of Rs.3,00,000/- (Rupees three lakhs only), which is lying in deposit with the Judicial Magistrate, Tiruchirappalli, is made over to the respondent. We order accordingly. r The sentence of 6 months' imprisonment

is set-aside.

The Judicial Magistrate, Tiruchirappalli is directed to make over the said amount of Rs.3,00,000/- (Rupees three lakhs only) along

with accrued interest, if any, to the respondent on sufficient identification."

(Emphasis supplied)

8. A perusal of the facts and records of the

case reveals that the petitioner could not repay his vehicle

loan as his vehicle was confiscated by the Respondent and

he had no other source of income. Even the vehicle

was sold by the bank on 17.09.2014. Therefore, in

the peculiar facts and circumstances of the case

coupled with the weak financial condition of the petitioner

as borne out from the records this Court considers

it appropriate to waive off the costs against the accused

when, the amount of loan already stands paid to the

Respondent-Bank.