Himachal Pradesh High Court

__________________________________________________________________________ vs Hem Chand & Anr on 2 September, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                            Cr. Revision No. 560 of 2024
                                           Date of Decision: 02.09.2024
__________________________________________________________________________
Hira Lal                                                  .........Petitioner
                                           Versus
Hem Chand & Anr.                                          .......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the petitioner:      Mr. Manohar Lal Sharma, Advocate.

For the Respondent:      Mr. Arsh Chauhan, Advocate, for respondent No.
                         1.
[


                        Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.
                        Verma, Additional Advocate Generals, with Mr.
                        Ravi Chauhan, Deputy Advocate General, for
                        respondent No.2-State.
_________________________________________________________________________
Sandeep Sharma, J. (Oral)

By way of instant application filed under Section 5 of

Limitation Act, prayer has been made on behalf of the applicant-petitioner

for condonation of delay in maintaining the accompanying criminal revision

petition, which is barred by limitation.

2. Pursuant to notices issued in the instant application, Mr. Arsh

Chauhan, Advocate and Mr. Vishal Panwar, learned Additional Advocate

General, have put in appearance on behalf of respondent No. 1 and

respondent No. 2, respectively. They fairly state that they do not intend to

file reply to the application and as such, this Court may pass appropriate

orders.

3. Having heard learned counsel for the parties and perused

averments contained in the application, which is duly supported by an

affidavit, this Court finds no impediment in accepting the prayer, especially

when delay caused in maintaining accompanying criminal revision petition

does not appear to be intentional or willful, rather same has occurred on

account of circumstances, which were completely beyond the control of the

applicant, as such, the same deserves to be condoned.

4. In view of above, delay of 11 days, which has been otherwise

sufficiently explained is condoned. The application is disposed of. Petition

be registered.

5. Instant criminal revision petition filed under Section 438 of

Bharatiya Nagrik Suraksha Sanhita, lays challenge to judgment dated

16.05.2024 passed by learned Additional Sessions Judge-I, Shimla, District

Shimla, H.P., in Criminal Appeal No. 118 of 2023, affirming the judgment

of conviction dated 17.06.2023 and order of sentence dated 24.06.2023

passed by learned Additional Chief Judicial Magistrate, Court No. I,

Shimla, H.P., in criminal complaint No. 507 of 2018, whereby learned

Court below, while holding petitioner-accused (hereinafter 'accused')

guilty of having committed offence punishable under Section 138 of the

Negotiable Instruments Act (for short 'Act') convicted and sentenced him

to undergo simple imprisonment for a period of six months and pay

compensation to the tune of Rs. 1,10,000/- to the respondent No. 1-

complainant (hereinafter 'complainant').

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

that complainant filed a complaint under Section 138 of the Act in the

competent court of law, alleging therein that accused with a view to

discharge his liability issued cheque bearing No. 399307 dated 04.04.2018

amounting to Rs. 80,000/- in favour of the complainant, however, the

same was dishonoured on account of insufficient funds in the bank

account of the accused. Since 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 before the competent

Court of law.

7. Learned trial Court on the basis of material adduced on record

by the respective parties, vide judgment dated 17.06.2023 and order dated

24.06.2023, held the accused guilty of having committed offence

punishable under Section 138 of the Act and accordingly, convicted and

sentenced him as per the description given hereinabove.

8. Being aggrieved and dissatisfied with the aforesaid judgment of

conviction recorded by the learned Court below, accused preferred an

appeal in the court of learned Additional Sessions Judge-I, Shimla, District

Shimla, H.P., which came to be dismissed vide judgment dated 16.05.2024,

as a consequence of which, judgment of conviction recorded by the learned

trial Court came to be upheld. In the aforesaid background, present

petitioner-accused has approached this Court by way of instant

proceedings, seeking therein his acquittal after setting aside the judgments

of conviction recorded by the courts below.

9. Before case at hand could be heard and decided on its own

merit, parties have entered into compromise, whereby they have resolved to

settle the dispute amicably inter se them.

10. Today during proceedings of the case, learned counsel for the

petitioner, on instructions, states before this Court that accused has paid

the entire amount of compensation to the complainant awarded by learned

trial Court. He states that on account of aforesaid amicable settlement

arrived inter se parties, this Court while exercising power under Section

147 of the Act may proceed to compound the offence and acquit the

accused from the charges framed against him.

11. While fairly admitting factum of compromise arrived inter se

parties, Mr. Arsh Chauhan, learned counsel for the complainant, states

that complainant has no objection in compounding the offence.

Respondent, who is present in Court, states on oath that he of his own

volition and without any external pressure has entered into compromise

with the accused, whereby they have agreed to settle their dispute

amicably. He states that as per compromise, he has received the entire

amount of compensation from the accused and as such, he shall have no

objection in compounding the offence and acquitting of the accused from

the charges framed against him under Section 138 of the Act.

12. Since parties have resolved to settle the dispute amicably inter

se them, as has been taken note hereinabove, coupled with the fact that

complainant has no objection in compounding the offence, this Court sees

no impediment in accepting the prayer made on behalf of the accused for

compounding the 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 it

has been categorically held that court, while exercising power under

Section 147 of the Act, can proceed to compound the offence even after

recording of conviction by the courts below.

13. Consequently, in view of the discussion made hereinabove as

well as law taken into consideration, present matter is ordered to be

compounded and impugned judgments of conviction and sentence dated

16.05.2024, 17.06.2023 and 24.06.2023, passed by the learned Courts

below are quashed and set-aside and the accused is acquitted of the charge

framed against him under Section 138 of the Act. Interim order, if any, is

vacated. Bail bonds, if any, are discharged. The petition is disposed of

alongwith pending applications, if any. Since the 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 accused immediately, subject to verification that he

is required in any other case.

13. Since complainant was compelled to engage in unwarranted

litigation with the accused for realization of his own amount, petitioner-

accused is directed to deposit 5% of the cheque amount with the HP State

Legal Service Authority within a period of six weeks as compounding fee,

failing which, he shall render himself liable for penal consequences as well

as contempt of Court.

(Sandeep Sharma) Judge September 02,2024 (sunil)

DN: C=IN, O=HIGH COURT OF HIMACHAL

MAMTA PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=36bb51250baa5a51385bbc5a5b425314fae3849 31dc610a63165c9febd25094e, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=2987d79d0aae1f98d0fd5663fb63f71

RAO 5a53ab1add092fa3617b76bdc094f63d9, CN=MAMTA RAO Reason: I am approving this document Location: