Tarachand Agarwal vs The State Of Jharkhand
2022 Latest Caselaw 3904 Jhar

        IN THE HIGH COURT OF JHARKHAND AT RANCHI
                        (Criminal Revisional Jurisdiction)

                     Criminal Revision No. 1455 of 2015

Tarachand Agarwal, s/o Sriniwas Agarwal, r/o Katras Bazar, PO & PS
Katrasgarh, District Dhanbad.                              ......Petitioner
                              Versus
1.The State of Jharkhand
2. Rajiv Ranjan, s/o Sri Nawal Kishore Prasad, Branch-in-Charge,
M/s. Ashok Leland Finance (A Division of IndusInd Bank), 113 Urmila
Tower, Bank More, PO and PS Bank More, District Dhanbad.
                                                   ..... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner : Mr. Arpan Mishra, Advocate For the Bank : Mr. Aashish Kumar, Advocate For the State : Mrs. Priya Shreshtha, Spl. PP

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Order No.11/ Dated: 23rd September 2022

The petitioner was made accused in C.P. Case No. 962 of 2006. He has been convicted and sentenced to SI for six months under section 138 of the Negotiable Instruments Act, 1881 and directed to pay compensation of Rs.7,76,300/- to the complainant.

2. The brief facts of the case are that the petitioner entered into Hire Purchase Agreement for purchase of a vehicle. However, he defaulted in making payments of monthly installments and the cheque for Rs.7,76,300/- drawn on Union Bank of India, Dhanbad issued by him in favour of OP No.2 was dishonoured with the remarks "insufficient fund". OP No.2 has pleaded that a legal notice was issued on 24 th May 2006 but inspite of lapse of statutory period the petitioner did not pay the aforesaid cheque amount.

3. By an order dated 6th August 2014, the trial Court has convicted the petitioner as under:

" It is crystal clear from the record that cheque was issued by the accused in favour of the complainant Company and when the said cheque was placed before the bank for its realization then it was returned to him with a memo of remarks "insufficient fund" standing in the account of accused and lastly complainant sent a legal notice was issued on 24.05.06 but all in vain. Thereafter, he has filed this case. It is admitted that the

complainant & this accused entered into Hire Purchase Agreement for procurement of a vehicle and the vehicle was delivered, as per terms & payment schedule of the said agreement. The accused continuously defaulted in making payments of the monthly installments as per agreement and on due persuation of the complainant, accused had issued a cheque bearing no.0123701 dated 31.03.06 worth Rs.7,76,300/- of Union Bank of India, Dhanbad Branch, Dhanbad in favour of the complainant by the accused and the said cheque alongwith memo and other relevant documents has been filed by him in corroboration of the case and it is marked exhibits in this case which shows that the complainant has proved and established his case against the accused Tara Chand Agarwal for the offence u/s 138 of N.I. Act and I also hold him guilty for the offence u/s 138 of N.I. Act."

4. The learned Magistrate has sentenced to the petitioner to the following terms:

"On behalf of the convict, learned counsel submitted that this is the first offence of the convict and there is no criminal antecedent pending against him, so minimum sentence may be awarded to him in passing the sentence.

Though the learned counsel appearing for the complainant submitted that cheque was issued in favour of the complainant, and after bouncing of the cheque, a legal notice was issued in the name of the convict but the convict was requested to pay the said amount, so maximum sentence may be awarded to him in passing the sentence.

Since I hold convict namely Tara Chand Agarwal guilty for the offence u/s 138 of N.I. Act and it has not been denied by him. It may be repeated by this very convict in future, therefore, the convict namely Tara Chand Agarwal is hereby sentenced to undergo S.I. for six months for the offence u/s 138 of N.I. Act with a compensatory cost of Rs.7,76,300- u/s 357 of Cr.P.C."

5. Criminal Appeal No. 115 of 2014 filed by the petitioner was dismissed with modification in the order of sentence to the extent that the punishment of SI for six months has been modified and reduced to SI for three months.

6. By an order dated 15th September 2015, the Appellate Court has held as under:

"12. I have gone through Ext.-C reply of notice of complainant dated 21.04.06 given by the appellant dated 29.04.06, in the said reply the same point was raised. It is stated that at the time of agreement, blank cheques were obtained by the complainant and the said blank cheque filled up by the complainant mentioning date 31.03.06 showing an amount Rs.7,76,300/-. Whereas such amount was not payable by the appellant. Therefore, the appellant is not liable to honour the said cheque, liability although accepted by the appellant but not to the tune of Rs.7,76,300/-. As regards post dated cheque it is establish law that post dated cheque, which is not payable on demand till a

particular date, is not a cheque in the eyes of law, till date which is written on the said cheque. It means law also recognize validity of cheque on future date. Presumption u/s 139 of N.I. Act is also in favour of holder of the cheque and the cheque issued was in discharge of legal liability, though rebuttable presumption. On the one hand the learned counsel for the appellant admitted that the cheque being issued in favour of the complainant. However it was claimed that, several cheques had been issued undated as security for due discharge of payment of monthly installment. The Ext.-A (statement of account) shows that only Rs.5,37,733/- was due where as Rs.7,76,300/- was filled up by the complainant without any basis. First of all it is worth to mention that proceeding u/s 138 of N.I. Act could not be equated with suit for money recovery. Section 138 N.I. Act fasten criminal liability. Moreover, this issue of the suit of legally recoverable liability did not raise by the appellant before the trial court as can be seen from cross-examination of witness. No suggestion was put by the appellant to the complainant witnesses while cross examining him that on 30.03.06 only Rs.5,37,337/- was payable by the appellant. At this stage the appellant cannot be permitted to set up a new defence. Moreover, the appellant set up a vague defence which is not tenable.

13. Considering the aforesaid facts of the case and object of legislation, I do not find any merit in this appeal, it is dismissed accordingly. However, the jail sentenced is reduced to simple imprisonment for three months. The compensation amount is reasonable, therefore does not require any interference by this Court. No order as to cost........."

7. In the present Criminal Revision Petition, by an order dated 17 th December 2015 passed in I.A. No. 6917 of 2015, the application filed by the petitioner seeking exemption from surrendering was allowed on the condition that he shall deposit Rs.3,38,150/- by way of demand draft in favour of IndusInd Bank. The petitioner has filed supplementary affidavit to the effect that he deposited Rs.1,69,075/- through demand draft on 22nd January 2016 and another demand draft for Rs.1,69,075/- on 29 th February 2016. The aforesaid payments have been accepted by the Bank and there is no dispute in this regard.

8. On 20th July 2022, a statement was made by the learned counsels appearing for the parties that both parties have arrived at a compromise.

9. Pursuant thereof, an affidavit dated 3rd August 2022 has been filed by the petitioner undertaking that he shall pay the balance amount of Rs.4,38,150/- within a period of six months in two equal installments.

10. The aforesaid proposal made by the petitioner on affidavit has been accepted by OP No.2 who is posted as Deputy Legal Manager in the

IndusInd Bank Limited, in the following terms:

"2. That it is humbly submitted that the petitioner has earlier deposited Rs.3,38,150/- by way of demand draft drawn in favour of Indusind Bank Limited in pursuance of the order dated 17/12/2015, passed by this Hon'ble Court.

3. That it is humbly submitted that by way of supplementary affidavit the petitioner has stated that he is now ready to pay the rest amount to the tune of Rs.4,38,150/- in two equal installments within a period of six months.

4. That the deponent humbly submits that the O.P. No. 2/Bank is ready to accept the proposal made by the petitioner."

11. The learned counsel for the petitioner refers to the judgment in "Gian Singh v. State of Punjab" (2012) 10 SCC 303 to submit that in view of the compromise between the parties, the present Criminal Revision Petition may be allowed.

12. In "Gian Singh" case the Hon'ble Supreme Court has observed as under:

"58. Where the High Court quashes a criminal proceeding having regard to the fact that the dispute between the offender and the victim has been settled although the offences are not compoundable, it does so as in its opinion, continuation of criminal proceedings will be an exercise in futility and justice in the case demands that the dispute between the parties is put to an end and peace is restored; securing the ends of justice being the ultimate guiding factor. No doubt, crimes are acts which have harmful effect on the public and consist in wrongdoing that seriously endangers and threatens the well-being of the society and it is not safe to leave the crime-doer only because he and the victim have settled the dispute amicably or that the victim has been paid compensation, yet certain crimes have been made compoundable in law, with or without the permission of the court. In respect of serious offences like murder, rape, dacoity, etc., or other offences of mental depravity under IPC or offences of moral turpitude under special statutes, like the Prevention of Corruption Act or the offences committed by public servants while working in that capacity, the settlement between the offender and the victim can have no legal sanction at all. However, certain offences which overwhelmingly and predominantly bear civil flavour having arisen out of civil, mercantile, commercial, financial, partnership or such like transactions or the offences arising out of matrimony, particularly relating to dowry, etc. or the family dispute, where the wrong is basically to the victim and the offender and the victim have settled all disputes between them amicably, irrespective of the fact that such offences have not been made compoundable, the High Court may within the framework of its inherent power, quash the criminal proceeding or criminal complaint or FIR if it is satisfied that on the face of such settlement, there is hardly any likelihood of the offender being convicted and by not quashing the criminal proceedings, justice shall be casualty and ends of justice shall be defeated. The above list is illustrative and not exhaustive. Each case will

depend on its own facts and no hard-and-fast category can be prescribed."

13. In view of the compromise between the parties, conviction of the petitioner under section 138 of the Negotiable Instruments Act and the order of sentence dated 15th September 2015 of SI for three months passed by the Appellate Court are set aside.

14. Consequently, conviction and sentence dated 6th August 2014 passed in C.P. Case No. 962 of 2006 are also set aside.

15. Criminal Revision No. 1455 of 2015 is allowed in the aforesaid terms.

16. Let a copy of the order be transmitted to the Court concerned through 'FAX'.

(Shree Chandrashekhar, J.)

RKM