Punjab-Haryana High Court
Rajesh Kumar vs Rakesh on 2 September, 2024
Neutral Citation No:=2024:PHHC:115018
CRM-32393-2019 in/and
CRR-2736-2019 -1-
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
253 CRM-32393-2019 in/and
CRR-2736-2019
Date of decision: 2nd September, 2024
Rajesh Kumar
...Petitioner
Versus
Rakesh
...Respondent
CORAM: HON'BLE MRS. JUSTICE MANISHA BATRA
Present: Petitioner-in person with
Mr. Prashant Sethi, Advocate for the petitioner.
Respondent-in person with
Mr. Sumit Sharma, Advocate for
Mr. U.M. Khan, Advocate for the respondent.
***
MANISHA BATRA, J (ORAL):-
The instant revision petition has arisen from a criminal
complaint bearing No. RBT-1425 of 2017 titled as 'Rakesh Vs. Rajesh
Kumar' filed under Section 138 of Negotiable Instruments Act, 1881 (for
short 'NI Act') that had been filed by the complainant (to be mentioned as
respondent henceforth) alleging therein that he had entered into a partnership
with the accused Rajesh Kumar (to be mentioned as petitioner) and one
Devender for running business of sale and purchase of property in Noida.
They had played fraud with him compelling him to lodge a complaint
against them. Subsequently, a compromise had taken place between them, as
per which. the present petitioner and co-accused had agreed to make
payment of an amount of Rs. 20,00,000/- to him. The petitioner had issued
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CRM-32393-2019 in/and
two cheques in his favour. One of the said cheques which was for a sum of
Rs. 5,00,000/- had been presented before his banker but the same was
dishonoured with the remarks 'funds insufficient'. After sending statutory
notice, the respondent filed the aforementioned complaint. The petitioner
was summoned as an accused in the said complaint. The learned trial Court
vide order dated 14.11.2018 had held the petitoiner guilty for commission of
offence punishable under Section 138 of NI Act and he was sentenced to
undergo simple imprisonment for a period of six months and to pay
compensation of Rs. 7,50,000/-. The petitioner challenged his conviction
before the Appellate Court and vide judgment dated 04.10.2019 the findings
given by the trial Court were upheld.
3. Feeling aggrieved, the petitioner has filed this revision petition.
Along with the revision petition, he has filed an application bearing CRM
No. 32393 of 2019 for compounding the offence for which he has been held
guilty and convicted.
4. It is argued by learned counsel for the petitioner that a
compromise had been arrived at between the respondent and himself on
04.10.2019. Memorandum of compromise (Annexure A-1) was executed
between the parties. The entire disputed amount including the amount of
cheque in question has been given by the petitioner to the respondent. It is
submitted that the respondent also admits the factum of the above stated
compromise having been arrived between the parties and about receipt of
entire disputed amount and therefore, he deserves to be granted permission
to compound the offence.
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5. Today the respondent has appeared in-person along with his
counsel. It is affirmed by him that the compromise (Annexure A-1) was
voluntarily executed by him on 04.10.2019. He has also submitted that the
amount of cheque in question as well as other cheques which have been
issued by the petitioner, stands paid to him. He has stated in the Court that
he has no objection, if the offence under Section 138 of NI Act stands
compounded in favour of the petitioner and the judgment of conviction and
order of sentence recorded by learned trial Court and affirmed by learned
Appellate Court are quashed and set aside.
6. Section 147 of NI Act makes all offencs under the NI Act as
compoundable offences. It is well settled proposition of law by now that in
view of the provisions contained under this Section read with Section 320 of
Cr.P.C., a compromise arrived inter se the parties can be accepted and the
offence committed under Section 138 of NI Act, can be ordered to be
compounded even after conviction. Reference in this regard can be made to
the judgment dated 02.03.2022 pronounced by the High Court of Himachal
Pradesh in Criminal Misc. (main) petition No. 107 of 2022 under Section
482 of Cr.P.C. titled as 'Hiranand Shastri Vs. Ram Rattan Thakur and
another', wherein it was observed that the judgment of conviction recorded
under Section 138 of NI Act can be recalled, in view of the specific
provisions contained under Section 147 of the Act, which provide for
compounding of offence allegedly committed under Section 138 of NI Act.
Similar proposition of law was laid down in the judgment dated 21.12.2021
in CRM-M-No. 2499-2021 in Geeta Devi Vs. Surinder Singh and another',
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wherein it was observed by the High Court of Himachal Pradesh that the
Court has ample powers under Section 147 of NI Act to compound the
offence in those cases, where the accused already stands convicted.
7. In Damodar S. Prabhu Vs. Sayed babalal H. 2010(2) RCR
(Criminal) 851,, the Hon'ble Supreme Court had laid down several
guidelines with regard to the proceedings conducted in connection with
complaints filed under Section 138 of NI Act. It was observed that the
interest of the complainant lied primarily in recovering the money rather
than seeing the drawer of the cheque in jail. with respect to the offence of
dishonor of the cheque and it is compensatory aspect of the remedy which
should be given priority over the punitive aspect.
8. In Raj Reddy Kallen Vs. State of Haryana and another (2024)
5 SCR 203, it was observed by Hon'ble Supreme Court that keeping in mind
that 'compensatory aspect,' of remedy shall have priority over the 'punitive
aspect', courts should encourage compounding of offences under the NI Act,
if the parties are willing to do so.
9. In the instant case, as discussed above, the parties have entered
into a compromise, terms of which have been reduced into writing way back
in the year 2019. Copy of the same has been produced on record as
Annexure A-1. This compromise was effected after passing of judgment
dated 04.10.2019 by the Appellate Court. The respondent-complainant has
affirmed the factum of this compromise and has given his no objection, if
this petition is allowed. The veracity of Annexure A-1 as such stands
established in view of the statement so made by the respondent before this
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Court today. There is no doubt that the petitioner and the respondent have
reached at a settlement permissibile by law. This Court has also satisfied
itself regarding the genuniness of the compromise Annexure A-1. As such, in
the considered opinion of this Court, the conviction of the petitioner would
not serve any purpose and is required to be set aside. In the light of the
judicial precedents as referred above, the terms of the compromise and the
other factors peculiar to the case, the contents of the memorandum of
compromise point towards its acceptance. As such, this Court is of the
considered opinion that the applicaiton filed by the petitioner for granting
permission to compound the subject offence deserves to be allowed.
Consequently, the complaint No. RBT-1425 of 2017 titled as 'Rakesh Vs.
Rajesh Kumar' judgment of conviction and order of quantum of sentence
dated 14.11.2018 as passed by the learned trial Magistrate as well as the
judgment dated 04.10.2019 passed in criminal appeal No. 390 of 2018 by
the learned Sessions Judge, Faridkot are set aside. The offence for which the
petitioner was convicted stands compounded and the petitioner is acquitted
on account of such compounding.
10. Since the main petition has been disposed of, pending
application, if any, is rendered infructuous.
[MANISHA BATRA]
JUDGE
2nd September, 2024
Parveen Sharma 1. Whether speaking/ reasoned : Yes
2. Whether reportable : Yes
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