Decided On: 23.05.2025 vs Rajay Shakti
2025 Latest Caselaw 5938 HP

Himachal Pradesh High Court

Decided On: 23.05.2025 vs Rajay Shakti on 23 May, 2025

Author: Sushil Kukreja

Bench: Sushil Kukreja

                                          1                Neutral Citation No. ( 2025:HHC:15615 )



    IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                       Criminal Revision No. 128 of 2021
                        Decided on: 23.05.2025
    ________________________________________________
    Nirjal Attri                            ....Petitioner
                          Versus
    Rajay Shakti                          ...Respondent

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

    For the respondent:          Mr. Rajinder Thakur, Advocate.
    ________________________________________________
    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 20.04.2021, passed by

learned Sessions Judge, Hamirpur, H.P., in Criminal Appeal

No. 41 of 2018, partly allowing the appeal and modifying the

judgment of conviction, dated 01.06.2018, and order of

sentence, dated 07.08.2018, passed by learned Chief

Judicial Magistrate, Hamirpur, H.P., in Case No. 48 of 2016,

with a prayer to set-aside both the aforesaid judgments and

acquit him from all charges.

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

can succinctly be summarized as under:

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

2 Neutral Citation No. ( 2025:HHC:15615 )

2(a). The accused-Nirjal Attri and complainant-Rajay

Shakti were acquainted with each other. In the month of

May, 2024, on the request of the accused, the complainant

gave him an amount of Rs.3,90,000/- and the accused

promised to return the same within fifteen days. In order to

liquidate his financial liability towards the complainant, the

accused issued cheque No. 000011, dated 19.08.2014,

amounting to Rs.3,90,000/-, drawn on Bank of Baroda,

Ghumarwin, District Bilaspur, in favour of the complainant.

However, the aforesaid cheque, on being presented for

encashment, was dishonoured with remarks 'insufficient

funds', vide memo, dated 25.09.2014. Thereafter, the

complainant served the accused with demand notice, dated

08.10.2014, but the accused failed to liquidate the aforesaid

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

sentenced him to undergo rigorous imprisonment for a period 3 Neutral Citation No. ( 2025:HHC:15615 )

of six months and to pay compensation of Rs.3,90,000/- to

the complainant.

4. Being dissatisfied, the accused/petitioner/convict

preferred an appeal before the learned Lower Appellate

Court, which was partly allowed and order of sentence, dated

07.08.2018, was modified. The rigorous imprisonment of

imprisonment of six months was modified to simple

imprisonment of six months and rest part of the judgment

and order was upheld. Hence, accused/petitioner/convict-

Nirjal Attri preferred the instant petition under Section 397

read with Section 401 Cr.P.C., with a prayer to set-aside

both the aforesaid judgments and he be acquitted.

5. During the pendency of the instant petition, an

application (Cr.MP No. 1738 of 2025) under Section 528 of

the Bhartiya Nagarik Suraksha Sanhita, 2023 (for short

'BNSS') has been filed by the petitioner-accused, seeking

permission of this Court to compound the offence by setting-

aside the judgment of conviction, dated 01.06.2018, and

order of sentence dated, 07.08.2018, passed by learned

Chief Judicial Magistrate, Hamirpur, H.P., in Complaint No.

58-I-2014, RBT 41-I-2016, and modified/affirmed vide 4 Neutral Citation No. ( 2025:HHC:15615 )

judgment dated 20.04.2021, passed by learned Sessions

Judge, Hamirpur, H.P., in Criminal Appeal No. 41 of 2018.

6. On 02.05.2025, both petitioner-accused Nirjal

Attri and respondent-complainant Rajay Shakti were present

before this Court and their statements were recorded and

separately placed on the file.

7. In his statement, complainant-Shri Rajay Shakti

stated that during the pendency of the present proceedings,

he has compromised the matter with the petitioner, as he has

deposited the entire cheque amount, i.e., a sum of

Rs.1,32,500/- before the learned Trial Court and the

remaining amount of Rs.2,57,500/- in the Registry of this

Court. Therefore, he has no objection in case the matter is

compounded and judgment of conviction, dated 01.06.2018

and order of sentence dated 07.08.2018, passed against the

petitioner by learned Chief Judicial Magistrate, Hamirpur,

District Hamirpur, H.P. and upheld/modified by learned

Sessions Judge, Hamirpur, H.P., vide judgment dated

20.04.2021 is quashed and set-aside and he is acquitted of

the offence under Section 138 of the Act.

8. The petitioner-accused Nirjal Attri stated that on

a complaint filed by the respondent under Section 138 of the 5 Neutral Citation No. ( 2025:HHC:15615 )

Act, he was convicted by the Court of learned Chief Judicial

Magistrate, Hamirpur, District Hamirpur, H.P., vide judgment

of conviction, dated 01.06.2018 and order of sentence dated

07.08.2018 and sentenced to undergo rigorous imprisonment

for a period of six months and was directed to pay cheque

amount of Rs.3,90,000/-. He further stated that on appeal

preferred by him, the order of sentence was modified by

learned Sessions Judge, Hamirpur, H.P., from rigorous

imprisonment to simple imprisonment. He also stated that

during the pendency of the present proceedings he has

compromised the matter with the respondent by depositing

the entire cheque amount, i.e., a sum of Rs.1,32,500/- before

the learned Trial Court and remaining amount of

Rs.2,57,500/- in the Registry of this Court. Therefore, the

matter may be compounded and judgment of conviction,

dated 01.06.2018 and order of sentence dated 07.08.2018,

passed against him by learned Chief Judicial Magistrate,

Hamirpur, District Hamirpur, H.P., vide judgment dated

20.04.2021 may be quashed and set-aside and he may be

acquitted of the offence under Section 138 of the Act.

6 Neutral Citation No. ( 2025:HHC:15615 )

9. I have heard the learned counsel for the

petitioner, learned counsel for the respondent and 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.

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.

7 Neutral Citation No. ( 2025:HHC:15615 )

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 8 Neutral Citation No. ( 2025:HHC:15615 )

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

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.

9 Neutral Citation No. ( 2025:HHC:15615 )

14. Accordingly, the present matter is ordered to be

compounded and the impugned judgment of conviction,

dated 01.06.2018, and order of sentence, dated 07.08.2018,

passed by learned Chief Judicial Magistrate, Hamirpur,

District Hamirpur, H.P., in Complaint No. 58-I-2014, RBT 41-

I-2016, which was affirmed/modified in appeal by learned

Additional Sessions Judge, Hamirpur, H.P., vide judgment

dated 20.04.2021, passed in Criminal Appeal No. 41 of 2018,

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 Registry and the learned Trial Court are

directed to release amounts of Rs. 2,57,500/- and

Rs.1,32,500/- respectively, which had been deposited by the

accused-petitioner in favour of the complainant-Shri Rajay

Shakti, after due verification.

16. Undisputedly, the total amount of the cheque is

Rs.3,90,000/-, 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 10 Neutral Citation No. ( 2025:HHC:15615 )

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.

11 Neutral Citation No. ( 2025:HHC:15615 )

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

and circumstances of the case, the petitioner is directed to

deposit token compounding fee of Rs.10,000/- (rupees ten

thousand), 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 )
23rd May, 2025                                   Judge
      (virender)