Himachal Pradesh High Court

M/S Paras Kanwar & Company vs Sh. Surjeet Singh And Anr. ... on 5 August, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                            2024:HHC:6344

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                       Cr.MP No. 3175 of 2024 in Cr.R. No. 213 of 2023
                       Cr.MP No. 3176 of 2024 in Cr.R. No. 215 of 2023
                                              Date of Decision: 5.8.2024
_____________________________________________________________________
1. Cr.MP No. 3175 of 2024 in Cr.R. No. 213 of 2023
M/s Paras Kanwar & Company              .........Applicant/Petitioner
                                    Versus
Sh. Surjeet Singh and Anr.       .......Non-applicants/Respondents
2. Cr.MP No. 3176 of 2024 in Cr.R. No. 215 of 2023
M/s Paras Kanwar & Company                .........Applicant/Petitioner
                                      Versus
Sh. Surjeet Singh and Anr.          .......Non-applicants/Respondents
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the petitioner(s):     Mr. G.R. Palsra, Advocate.
For the Respondent(s):       Ms. Rekha Thakur, Advocate, for respondent
                             No.1.
                              Mr. Rajan Kahol, Mr. Vishal Panwar and Mr.
                              B.C. Verma, Additional Advocates General
                              with Mr. Ravi Chauhan, Deputy Advocate
                              General, for respondent No.2.
_________________________________________________________________________

Sandeep Sharma, J. (Oral)

By way of instant applications filed under Section 147 of

Negotiable Instruments Act read with Section 528 of Bharatiya Nagarik

Suraksha Sanhita, 2023, prayer has been made by the applicant-accused

for compounding of offence alleged to have been committed under Section

138 of the Act.

2. Precisely, the facts of the case as emerge from the record are

that non-applicant/respondent/complainant (for short 'complainant')

filed a complaint under Section 138 of the Negotiable Instruments Act (for

short 'Act') in the competent court of law, alleging therein that accused

with a view to discharge his liability, had issued cheques amounting to

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Rs.50,000/- each (in both the cases) in his favour, but fact remains that

aforesaid cheques on their presentation were dishonoured on account of

insufficient funds in the account of the accused. Since, despite having

received demand notice accused failed to make the payment good within

the time stipulated in the legal notice, complainant was compelled to

initiate proceedings under Section 138 of the Act, in the competent court of

law.

3. Learned trial Court on the basis of the evidence adduced on

record by the respective parties, vide judgment(s) of conviction and order(s)

of sentence dated 30.11.2018/3.12.2018, held the accused guilty of having

committed the offence punishable under Section 138 of the Act, and

accordingly convicted and sentenced him to undergo simple imprisonment

for six months and pay Rs.55,000/- as compensation to the respondent-

complainant, in both the cases.

4. Being aggrieved and dissatisfied with the aforesaid judgment(s)

of conviction and order(s) of sentence recorded by learned trial court,

present petitioner-accused preferred appeals in the Court of learned

Sessions Judge, Mandi, District Mandi, Himachal Pradesh, but same were

also dismissed vide judgment dated 20.1.2023.

5. Further aggrieved with the aforesaid judgment passed by

learned first appellate court, applicant-accused preferred Criminal Revision

Petitions No.213 and 214 of 2023 in this Court, which also came to be

dismissed vide judgment dated 1.8.2024.

6. Since after passing of aforesaid judgment dated 1.8.2024,

applicant-accused has compromised the matter with the

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non-applicant/respondent/complainant, whereby accused has deposited

remaining amount in both the cases in the Registry of this Court,

applicant-accused has approached this Court in the instant applications,

praying therein for compounding of the offence under Section 147 of the

Act.

7. Learned counsel for the applicant/petitioner states that in both

the cases, his client has deposited Rs. 38,500/- each, before the Registry of

this Court, whereas sum of Rs. 16,500/- each, has been already deposited

in the learned trial Court. He further states that his client shall have no

objection in case aforesaid amount lying deposited with the Registry of this

Court as well as learned Court below in both the cases, is ordered to be

released in favour of the non-applicant/respondent/complainant. He

submits that in view of the aforesaid compromise, this Court may proceed

to compound the offence alleged to have been committed by the

applicant/petitioner/accused.

8. Ms. Rekha Thakur, learned counsel for non-applicant-

respondent-complainant, while fairly acknowledging factum with regard to

compromise arrived inter se parties contends that in case aforesaid amount

lying deposited before Registry of this Court as well as trial court below is

ordered to be released in favour of the non-applicant-respondent-

complainant, her client shall have no objection in case prayer made for

compounding the offence is accepted and petitioner is acquitted of the

offence alleged to have been committed by him under Section 138 of the

Negotiable Instruments Act.

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9. While considering the prayer made in the application, the

question which needs to be decided at first instance is that "whether after

upholding the judgment of conviction and order of sentence passed by

learned court below, this Court proceed to compound the offence or not?."

10. This Court vide judgment passed in Cr.MP No. 1197 of 2017 in

Cr. Revision No. 394 of 2015 titled Gulab Singh v. Vidya Sagar Sharma,

while relying upon judgment of Hon'ble Apex Court as well as other

Constitutional Courts has already held that court, while exercising power

under Section 147 of Act can proceed to compound offence even in those

cases, where accused stands convicted. Relevant portion of the order

passed by this court in order supra is reproduced as under:

"8. Before acceding to aforesaid joint request having been made by learned counsel for the respective parties, moot question arise for determination of this Court is whether it has power to review/recall its own order/judgment passed in Criminal Revision No.394 of 2015, wherein judgment of conviction recorded by both the Courts below came to be upheld.

9. Mr. Manohar Lal Sharma, learned counsel representing the petitioner, has invited attention of this Court to the judgment passed by Hon'ble High Court of Rajasthan in Naresh Kumar Sharma versus State of Rajasthan & another, Criminal Misc. Application No.371 of 2016 in Criminal Revision Petition No.1267 of 2016, to suggests that in view of amicable settlement arrived inter se the parties, this Court has power to recall its judgment in the light of the provisions contained in Section 147 of the Act, which permits compounding of the offence under Section 138 of the Act. At this stage, it would be profitable to reproduce the judgment passed by Hon'ble High Court of Rajasthan hereinbelow:-

"The accused-petitioner has field this criminal misc. application under section 482 Cr.P.C read with section 147 of Negotiable Instruments Act( for short the 'Act') with a prayer to review/recall the order dated 6.10.2016 passed by this Court in SB Criminal Revision Petition No.1267/2016 in the light of compromise dated 4.11.2016 subsequently entered between the parties and as a consequences thereof to acquit the accused petitioner for the offence under Section 138 of N.I. Act.

Vide order dated 6.10.2016, the aforesaid revision petition filed by the petitioner was dismissed by this Court while upholding and affirming the judgment and order of conviction and sentence

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passed by the trial Court as well as by the Appellate Court. It was jointly submitted by the learned counsel for the parties that after the order dated 6.10.2016 the parties have amicably settled their dispute and entered into compromise and the amount in the dispute has been paid by the petitioner to the respondent- complainant.

It was further submitted that although the revision petition has been dismissed by this Court on merits vide order dated 6.10.2016, but even then that order can be recalled in the light of provisions of Section 147 of N.I.Act which permits compound of the offence under Section 138 of the Act at any stage and the accused can be acquitted.

In support of their submissions, they relied upon the case of K. Subramanian Vs. R.Rajathi reported in (2010) 15 SCC 352 and order dated 7.7.2015 passed by a Single Bench of Hon'ble Gujarat High Court in S.B. Criminal Misc. Application (Recall) No.10232/2015 filed in Special Criminal Application No.3026/2014.

On consideration of submissions jointly made on behalf of the respective parties and the material including the compromise entered into between the parties and the fact that the amount in dispute has been paid by the accused-petitioner to the respondent- complainant and the principles of law laid down in the aforesaid decisions, I find it a fit case in the criminal misc. application is to be allowed and the order dated 6.10.2016 is to be recalled.

Consequently, the criminal misc. application is allowed and the order dated 6.10.2016 is recalled and all the orders whereby the accused-petitioner was convicted and sentenced for the offence under Section 138 of N.I. Act are set aside and as a consequence thereof he is acquitted therefrom."

11. Reliance is also placed upon the judgment passed by Hon'ble

Gujarat High Court, wherein similar application came to be filed for

recalling the judgment passed by the Hon'ble High Court of Gujarat. In the

aforesaid judgment, Hon'ble Gujarat High Court, has reiterated that

judgment passed by the High Court affirming the judgment of conviction

recorded under Section 138 of the Act, can be recalled in view of the

specific provisions contained in Section 147 of the Act, which provides for

compounding of offence allegedly committed under Section 138 of the Act.

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12. The Hon'ble Apex Court in K. Subramanian Vs. R.Rajathi;

(2010)15 Supreme Court Cases 352, also in similar situation ordered for

compounding of offence after recording of conviction by the courts below,

wherein it has been held 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. The Hon'ble Apex Court in the aforesaid judgment has

categorically held that in view of the provisions contained under Section

147 of the Act, read with Section 320 of Cr.P.C, compromise arrived inter

se the parties, can be accepted and offence committed under Section 138 of

the Act, can be ordered to be compounded. Hon'ble Apex Court in

Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, has

categorically held that offence punishable under Section 138 of the

Negotiable Instruments Act can be compounded after recording of

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conviction, hence this court while exercising power under Section 482

Cr.PC read with Section 147 of the Act, can proceed to compound the

offence alleged to have been committed by the petitioner and set-aside

judgment of conviction recorded by the courts below.

14. Consequently in view of the detailed discussion made

hereinabove as well as law laid down by the Hon'ble Apex Court, this Court

holds that present application for compounding of offence after dismissal of

criminal revision petition vide judgment dated 01.8.2024, is maintainable

and as such, parties are permitted to get the matter compounded in the

light of the compromise arrived inter se them. Accordingly, judgment(s) of

conviction and sentence recorded by the learned trial Court are quashed

and set-aside and petitioner is acquitted of the charge framed against him

in both the cases. Since the petitioner-accused is behind bars, Registry is

directed to prepare the release warrants and send the same to the

concerned Superintendent of Jail, forthwith, enabling the aforesaid

authority to release the petitioner immediately, subject to verification that

he is not required in any other case. Registry of this Court as well as

learned trial Court below are also directed to release the amount deposited

by the accused in both the cases in favour of the non-applicant-

respondent-complainant, on filing appropriate application, detailing therein

saving bank account details of non-applicant-respondent-complainant. The

applications are disposed of accordingly.


                                                                  (Sandeep Sharma)
                                                                       Judge
August 5, 2024
Sunil
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                                                       OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA,

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