Punjab-Haryana High Court
Sachin Kumar vs State Of Haryana And Another on 7 December, 2022
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
271
CRM-M-41100-2022
Date of Decision: 07.12.2022
Sachin Kumar
.... Petitioner
Versus
State of Haryana and another
.... Respondents
CORAM: HON'BLE MR. JUSTICE ASHOK KUMAR VERMA
Present: - Mr. Alok Mittal, Advocate for the petitioner.
Mr. Gaurav Bansal, Assistant Advocate General, Haryana.
Mr. Shubham Thakur, Advocate for respondent No. 2.
ASHOK KUMAR VERMA, J. (ORAL)
Through this petition under Section 482 Cr.P.C., prayer has
been made for quashing the order and judgment in appeal dated
16.02.2018 (Annexure P-2) passed by the learned Additional Sessions
Judge, Yamuna Nagar at Jagadhri and the judgment of conviction and
order of sentence dated 07.10.2015 (Annexure P-1) passed by the Judicial
Magistrate Ist Class, Yamuna Nagar at Jagadhri, on the basis of
compromise dated 31.08.2022 (Annexure P-3) arrived at between the
parties.
Brief facts of the case are that respondent No. 2 filed
complaint under Section 138 of the Negotiable Instruments Act, 1881 (for
short-'the Act') before the Judicial Magistrate Ist Class, Jagadhri against
the petitioner for dishonouring of cheque bearing No. 498561 dated
29.06.2013 for a sum of Rs.3,00,000/-. However, vide judgment of
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conviction and order of sentence dated 07.10.2015 (Annexure P-1)
passed by the trial Court, the present petitioner was convicted and
sentenced to under go R.I. for one year and no fine was imposed. The
matter was compromised between the parties for an amount of
Rs.55,000/-. Thereafter, the petitioner preferred appeal against the order
of conviction which was dismissed vide order dated 16.02.2018
(Annexure P-2) passed by the Additional Sessions Judge, Jagadhri.
Pursuant to the order dated 31.10.2022 passed by this Court,
the parties appeared before the learned Judicial Magistrate Ist Class,
Jagadhri, to get their statements recorded. Learned Judicial Magistrate Ist
Class, Jagadhri, has submitted his report along with statements of the
parties vide letter No. 680 dated 05.11.2022 duly forwarded by the
learned District and Sessions Judge, Yamuna Nagar, vide letter
No. 18882 dated 07.11.2022.
I have heard learned counsel for the parties and gone through
the relevant record.
The issue involve herein is as to whether the present petition
under Section 482 Cr.P.C can be entertained for compounding of offence
after passing of the conviction order and dismissal of the appeal.
Hon'ble the Supreme Court in the case of Cochin Hotels Co.
(P) Ltd. and others v. Kairali Granites and others, 2006(2) RCR
(Criminal) 333, in some what similar circumstances, allowed the
compounding of offence and set aside the order of conviction and
sentence. Similar order was also passed by the Apex Court in the case of
K Subramanian v. R Rajathi Rep. By POAP Kaliappan, 2010 (1), RCR
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(Criminal) 184, in para 5 of the judgment, reads as under:-
"The Trial Court by Judgment dated September 21, 2004
convicted the petitioner under Section 138 and sentenced
him to Simple Imprisonment for one year and fine of
Rs.5000/- in default Simple Imprisonment for 3 months.
Feeling aggrieved, the petitioner preferred Criminal Appeal
No.107 of 2004 before Sessions Court which was dismissed
on 24.12.2004. Thereupon, the petitioner filed Criminal
Revision Application No.179 of 2005 before the Madurai
Bench of Madras High Court which was dismissed on
January 30, 2008. Therefore, the petitioner filed SLP (Crl)
No.6974 of 2008 @ CRL.M.P. No.14586 of 2008 which was
also dismissed on September 11, 2008. Thereafter, a
compromise was entered into and petitioner claims that he
has paid Rs.4,52,289/- to respondent. In support of this
claim, the petitioner has produced affidavit sworn by him on
December 1, 2008. The petitioner has also produced
affidavit sworn by P.Kaliappan, Power of Attorney holder of
R.Rajathi on December 1, 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. The Learned Counsel
for the petitioner states at the bar that the petitioner was
arrested on July 30, 2008 and has undergone the sentence
imposed on him by the Trial Court and confirmed by
Sessions Court, High Court as well as by this Court. The two
affidavits sought to be produced by petitioner as additional
documents would indicate that indeed a compromise has
taken place between petitioner and the respondent and the
respondent has accepted the compromise offered by
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
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offence and close the proceedings."
Section 147 of the Act is reproduced as under:
"147. Offence to be compoundable.- Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974),
very offence punishable under this Act shall be compoundable."
Reliance has been placed on the judgment passed by this
Court in the case of Ritesh Gupta v. State of Punjab and another 2009
(3) R.C.R (Criminal) 61, whereby, this Court has relied upon the
judgment of Apex Court in the case of O.P Dholakia v. State of Haryana
and another, (2000) 1 SCC 762, wherein, the Apex Court was pleased to
allow the accused and the complainant to compound an offence under
Section 138 of the Act despite conviction and sentence having been held
by three Forums. In view of the compromise, the conviction and sentence
under Section 138 of the Act was annulled.
Hon'ble the Supreme Court in the case of Mrs. Shakuntala
Sawhney vs. Mrs. Kaushalya Sawhney and others, (1980) 1 SCC 63,
held that:-
"29. No embargo, be in the shape of Section 320 (9) of the
Cr.P.C. or any other such curtailment, can whittle down the
power under Section 482 of the Cr.P.C."
According to the report, learned Judicial Magistrate Ist
Class, Jagadhri, is satisfied that the compromise effected between the
parties is genuine. The amount of compensation of Rs.55,000/- has
already been paid by the petitioner to respondent No. 2.
In view of the above and considering the report of learned
Judicial Magistrate Ist Class, Jagadhri, the parties are allowed to
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compound the offence under Section 138 of the Act. As such, the present
petition is allowed and order and judgment in appeal dated 16.02.2018
(Annexure P-2) passed by the learned Additional Sessions Judge,
Yamuna Nagar at Jagadhri and the judgment of conviction and order of
sentence dated 07.10.2015 (Annexure P-1) passed by the Judicial
Magistrate Ist Class, Yamuna Nagar at Jagadhri, are set aside.
The petitioner who is in custody since, 10.10.2022, is
ordered to be released forthwith, if not required in any other case.
December 07, 2022 (ASHOK KUMAR VERMA)
rishu JUDGE
Whether speaking/reasoned Yes/No
Whether Reportable Yes/No
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