Himachal Pradesh High Court
Decided On: 19.11.2024 vs Ved Ram @ Ved Singh & Another on 19 November, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 Neutral Citation No. ( 2024:HHC:11736 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 370 of 2023
Decided on: 19.11.2024
________________________________________________
Somi ....Petitioner
Versus
Ved Ram @ Ved Singh & another
...Respondents
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Sudhir Bhatnagar,
Advocate.
For respondent No. 1: Mr. Maan Singh, Advocate.
For respondent No. 2/State: Mr. Navlesh Verma, Additional
Advocate General, with Mr.
Gautam Sood, Mr. Raj Negi and
Ms. Niyati Thakur, Deputy
Advocates General.
________________________________________________
Sushil Kukreja, Judge (oral)
The instant petition has been filed by the
petitioner-accused under Section 397 read with Section 401
of Cr.P.C. against judgment dated 13.06.2023, passed by
learned Additional Sessions Judge, Kullu, in Criminal Appeal
No. 20 of 2023, whereby the judgment of conviction, dated
25.03.2023, and order of sentence dated 27.03.2023,
passed by learned Chief Judicial Magistrate, Kullu, H.P., in
criminal Complaint No. 527-I/2013, was affirmed.
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2024:HHC:11736 )
2. The brief facts, giving rise to the present petition,
can succinctly be summarized as under:
2(a). The complainant (respondent herein) and the
petitioner-accused were acquainted with each other and on
09.03.2013 the petitioner-accused purchased Kulvi Shawls,
caps, woolen mufflers, woolen shawls, woolen caps, Kulvi
jackets etc. worth Rs.1,00,000/- from the complainant. The
petitioner-accused, in order to discharge his financial liability
towards the complainant, issued a cheque bearing No.
034349, dated 25.05.2013, amounting to Rs.1,00,000/-,
drawn at State Bank of Patiala, Branch Shamshi. However,
the aforesaid cheque, on being presented for encashment
by the complainant was dishonoured with remarks "exceeds
arrangements". Subsequently, the complainant issued a
notice, dated 11.06.2013, to the petitioner-accused, but
despite receipt of the same he failed to make the payment of
the cheque amount within the stipulated time. Resultantly,
the complainant filed a complaint under Section 138 of the
Negotiable Instruments Act, 1881 (for short "the Act") before
the learned Trial Court.
3. The learned Trial Court after conclusion of the
trial convicted the accused under Section 138 of the Act and
3 Neutral Citation No. ( 2024:HHC:11736 )
sentenced him to undergo simple imprisonment for a period
of six months and to pay compensation of Rs.2,00,000/- to
the complainant.
4. Being dissatisfied, the accused/petitioner/convict
preferred an appeal before the learned Lower Appellate
Court, which was dismissed, and the judgment, dated
25.03.2023, and order of sentence, dated 27.03.2023,
passed by the learned Trial Court, was affirmed. Hence,
accused/petitioner/convict-Somi preferred the instant petition
under Section 397 read with Section 401 of Cr.P.C. with a
prayer that his petition be allowed and the impugned
judgments and order of sentence passed by the learned
Courts below be set-aside and he be acquitted.
5. During the pendency of the instant petition, an
application (Cr.MP No. 4653 of 2024) under Section 528 of
Bharatiya Nagarik Suraksha Sanhita (for short "BNSS") read
with Section 147 the Act has been filed by the petitioner-
accused, along with copy of Compromise (Annexure A-1)
seeking permission of this Court to compound the offence by
setting-aside the judgment of conviction, dated 25.03.2023,
and order of sentence, 27.03.2023, passed by learned Chief
Judicial Magistrate, Kullu, District Kullu, H.P., in Complaint
4 Neutral Citation No. ( 2024:HHC:11736 )
No. 527-I/2013, and affirmed vide judgment dated
13.06.2023, passed by learned Additional Sessions Judge,
Kullu, District Kullu, H.P., in Criminal Appeal No. 20 of 2023.
6. On 13.11.2024, the petitioner-accused was
present before this Court and his statement was recorded.
Today, complainant-respondent No. 1, is present before this
Court and his statement has been recorded. Both the
statements have been placed on the file.
7. In his statement, the petitioner/accused Somi
stated that he has compromised the matter with the
complainant/respondent No. 1, Ved Ram @ Ved Singh, and
paid the entire amount of compensation to him. He has
further stated that the matter may be compounded and the
judgment of conviction, dated 25.03.2023, and order of
sentence dated 27.03.2023, passed by learned Chief Judicial
Magistrate, Kullu, District Kullu, H.P., and affirmed by the
learned Additional Sessions Judge, Kullu, District Kullu, H.P.,
vide judgment, dated 13.06.2023, may be quashed and set-
aside and he may be acquitted for the offence punishable
under Section 138 of the Act.
8. The complainant-Shri Ved Ram @ Ved Singh
stated that he has compromised the matter with the
5 Neutral Citation No. ( 2024:HHC:11736 )
petitioner-accused, Somi, and has received the entire
amount of compensation from him. He has further stated
that he has no objection, in case the matter is compounded
and the judgment of conviction, dated 25.03.2023, and order
of sentence, dated 27.03.2023, passed by learned Chief
Judicial Magistrate, Kullu, District Kullu, H.P., which was
affirmed by learned Additional Sessions Judge, Kullu, District
Kullu, H.P., vide judgment, dated 13.06.2023, is quashed
and set-aside and the petitioner-accused is acquitted of the
offence punishable under Section 138 of the Act.
9. I have heard the learned counsel/Additional
Advocate General for the respective 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.
6 Neutral Citation No. ( 2024:HHC:11736 )
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,
7 Neutral Citation No. ( 2024:HHC:11736 )
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
8 Neutral Citation No. ( 2024:HHC:11736 )
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 25.03.2023, and order of sentence, dated 27.03.2023,
passed by learned Chief Judicial Magistrate, Kullu, District
Kullu, H.P., in Complaint No. 527-I/2013, which was affirmed
in appeal by learned Additional Sessions Judge, Kullu, H.P.,
in Criminal Appeal No. 20 of 2023, 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.
9 Neutral Citation No. ( 2024:HHC:11736 )
15. The learned counsel for the petitioner-accused
submitted that pursuant to order dated 24.07.2023, passed
by this Court, the petitioner-accused has deposited 30% of
the compensation amount, i.e., Rs.60,000/- before the
learned Trial Court. He prayed that the aforesaid amount
may kindly be released in favour of the petitioner-accused.
In the above backdrop, since the matter has been
compromised between the parties, the learned Trial Court is
directed to release the aforesaid amount in favour of the
petitioner-accused, after due verification.
16. Undisputedly, the cheque amount was
Rs.1,00,000/-, however, the learned counsel for the
petitioner submitted that the petitioner is a poor person and
the imposition of compounding fee may be reduced.
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
10 Neutral Citation No. ( 2024:HHC:11736 )
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, since the competent Courts can
reduce the compounding fee with regard to the specific facts
11 Neutral Citation No. ( 2024:HHC:11736 )
and circumstances of the case, the petitioner is directed to
deposit token compounding fee of Rs.2,500/- (rupees two
thousand five hundred), only with the H.P. State Legal
Services Authority, Shimla, 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
19 November, 2024 Judge
(virender)
