Dinesh Kumar Rai vs The State Of Jharkhand
2022 Latest Caselaw 3905 Jhar

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

                     Criminal Revision No. 974 of 2016

Dinesh Kumar Rai, s/o late Shyam Lal Rai, r/o Bera Collery, BCCL staff
Qr. No.3, PO & PS Dhansar, District Dhanbad.                 ......Petitioner
                                 Versus
1.The State of Jharkhand
2. Ram Gopal Agarwalla, s/o late Dwarika Prasad Agarwalla, r/o Jora Pathak,
PO & PS Dhansar, District Dhanbad.                   ..... Opposite Parties

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CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR

For the Petitioner : Md. Anisurzzama Khan, Advocate For the State : Mrs. Vandana Bharti, APP For OP No.2 : Mr. Kalyan Banerjee, Advocate Mr. Vishal Kumar, Advocate

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Order No.08/ Dated: 23rd September 2022

Mr. Kalyan Banerjee, the learned counsel is present in the Court in compliance of the order dated 16th September 2022.

2. The petitioner was made accused in C.P. Case No. 1523 of 2011. He has been convicted and sentenced to SI for one year under section 138 of the Negotiable Instruments Act, 1881 and directed to pay compensation of Rs.2,00,000/- under section 357 (3) of the Code of Criminal Procedure.

3. The brief facts of the case are that the petitioner who was employed under M/s BCCL requested for loan of Rs.3,50,000/- from OP No.2 for construction of his residential house. OP No.2 has stated that he gave Rs.3,00,000/- as friendly loan to the petitioner and entered into an agreement on the basis of the money receipt issued by the petitioner in presence of the witnesses. However, after few months, he defaulted in payment of the monthly installments and the cheque for Rs.1,70,000/- drawn on Bank of India, Bera Branch, Dhanbad issued by the petitioner was dishonoured with the remarks "opening balance insufficient".

4. A legal notice was issued on 5th July 2011 by OP No.2, however, even after the lapse of statutory period the petitioner did not pay the aforesaid cheque amount. Thereafter, OP No.2 filed the complaint case against the

petitioner in which he has been convicted under section 138 of the Negotiable Instruments Act.

5. By an order dated 2nd July 2015, the trial Court has convicted the petitioner as under:

"13. .........................It appears from the record that accused namely Dinesh Kumar have an operative account in Bank of India. Complainant was given Rs.3,40,000/- to the accused Dinesh Kumar as a friendly loan 25.04.10 and 18.06.10, thereafter, complainant demanded his money. Then accused person denied to repayment. Therefore, accused person have liability to repayment to the complainant, which is legally enforceable by the law. Accused Dinesh Kumar issued a cheque bearing No. 0027542 dated 10.03.11 in the name of the complainant Ram Gopal Agrawall, to whom the liability is owned by the account holder, from his such operative account in the bank, for the satisfaction of, part payment, for the said liability (Ext.2). The said cheque is presented by the Ram Gopal Agrawall, in the Vijaya Bank, Dhanbad for its encashment within period. The bank had returned the said cheque with dishonoured because of opening balance insufficiency of funds (Ext.-3). Complainant Ram Gopal Agrawall, whose name the cheque was issued, given a notice on 05.07.11, in writing, to the Dinesh Kumar, who has issued the cheque (Ext.-5, 5/1, 5/2, 5/3). The said notice has been sent through speed post (Ext.-6). The notice of demand is served to accused Dinesh Kumar, who had issued the cheque (drawer). The drawer Dinesh Kumar did not make the payment to the payee within fifteen days of the receipt of the said notice on him and the amount of cheque remains unpaid. Accused of this case has stated in his evidence in paragraph-11 that he has been received the demand notice. The complaint petition was filed on 09.08.11 within one month, after expiry of period of fifteen days from the date of service of notice on the drawer. Complainant of this case has proved that the cheque for an amount is issued by the accused person to complainant on a bank account maintained by him. The said cheque was issued for the discharge in part liability as friendly loan, which liability is legally enforceable by the law. The cheque is returned by the bank unpaid on account of insufficient fund. It is also clear that cheque was presented to the bank within six month on the date of drawn. After returned of the cheque, complainant has sent a demand notice to the accused within 30 days after receipt of information by the bank. Accused failed to make the payment of the said amount of money, within 15 days of this said notice. Accused of this case has taken plea that he was given the said cheque as a security, because according to him, he had been given all amounts to the complainant. But it is evident that there is no any chit of paper produced by the accused in support of his version. There is no any payment receipt. He has also not proved any paper, which shows, cheque had been given as a security to the complainant. Exhibit-1 proved that accused was taken money by the complainant. He has not informed any competent authority with reference to misuse of cheque as well as misuse of ATM. Therefore, evidence of accused is unbelievable. Thus, complainant of this case has been able to prove its case beyond the shadow of all reasonable doubts.

14. After considering all facts available on record and circumstances of the case, I found accused Dinesh Kumar Rai is guilty for the offence punishable u/s 138 N.I. Act. Hence, his bail is hereby cancelled and he is taken into judicial custody."

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

"Learned counsel for the both parties appeared and submitted regarding the hearing on the point of sentence. Learned counsel for the convicted person has submitted that the accused person is first offender and he has no any criminal antecedent. Therefore, this point should be taken into consideration at the time of passing sentence. On the other hand, learned counsel for the complainant has opposed the same. He submitted that convicted person has also been convicted in C.P. Case No. 1654/11 under N.I. Act. So he may be liable to rigorous imprisonment.

Considering the facts of the case, and after taking care the facts, circumstances, nature of offence and character of the offender, I sentenced the convict S.I. one year and imposed compensation of Rs.2,00,000/- u/s 357 (3) Cr. P.C. Let conviction warrant be prepared and convict to be sent to jail for serve out their sentence."

7. By an order dated 11th May 2016, the Appellate Court has dismissed the appeal preferred by him, holding as under:

"15. Thus, in view of the aforesaid facts and circumstances in my considered opinion the complainant has been able to prove this case against the appellant namely Dinesh Kumar Rai for the offence punishable u/s 138 of N.I. Act. Thus, I find and hold that the ld. Court below has rightly held him guilty and has also rightly sentenced him to undergo S.I of one year and to pay Rs.2,00,000/- (two lakh only) as compensation u/s 357 (3) of Cr.P.C. Accordingly, the sentence awarded by the ld. Lower court also does not required any interference."

8. Md. Anisurzzama Khan, the learned counsel for the petitioner refers to I.A. No. 2020 of 2022 to submit that the parties have arrived at an amicable settlement to their dispute and in pursuance thereof the joint compromise petition has been filed.

9. Mr. Kalyan Banerjee, the learned counsel who appears for OP No.2 affirms that the parties have amicably resolved their dispute in terms of the joint compromise petition which has been brought on record through I.A. No. 2020 of 2022.

10. In I.A. No. 2020 of 2022, the parties have stated as under:

"6. That petitioner has taken a friendly loan, a total amount of Rs.3,40,000/- from opposite party No.2 on 25.4.11 and in the month of June 2011 with promise to pay and petitioner issued a cheque No.0027542 dated 10.3.11 of Bank of India, Bera Branch, Dhanbad for Rs.1,70,000/- but the same was bounced

on 17.6.11 when produced by opposite party no.2 with remark of insufficient fund.

7. That subsequently on 28.12.18, petitioner paid the entire dues amount of the petitioner to opposite party no.2 and the same has been declared in declaration paper by opposite party no.2 in writing and the same has been annexed with the counter affidavit of opposite party no.2.

8. That subsequently, the other joint compromise petition was also made between the parties wherein it is stated that now the dispute has been resolved between the parties."

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, the order of the conviction and the order of sentence dated 2 nd July 2015 passed against the petitioner are hereby set aside.

14. Consequently, order dated 11th May 2016 of the Appellate Court is also set aside.

15. Accordingly, Criminal Revision No. 974 of 2016 is allowed.

16. The petitioner shall stand discharged of liability of the bail bonds furnished by him pursuant to the order dated 17th November 2017 passed by this Court.

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

18. Let the lower Court records be sent back to the Court concerned forthwith.

19. I.A. No. 2020 of 2022 stands disposed of.

(Shree Chandrashekhar, J.)

RKM