Uttarakhand High Court
Mahesh Chand Kushwaha vs State Of Uttarakhand And Another on 4 July, 2024
Author: Rakesh Thapliyal
Bench: Rakesh Thapliyal
HIGH COURT OF UTTARAKHAND AT
NAINITAL
THE HON'BLE SRI JUSTICE RAKESH THAPLIYAL
C482 Application No. 1097 of 2024
Mahesh Chand Kushwaha ........Applicant
Versus
State of Uttarakhand and another ....Respondents
Counsel for the applicant : Mr. Bhuwan Bhatt, learned counsel
Counsel for the State : Mr. V.S. Pal, learned AGA and Mr. Akshay
Latwal, learned Brief Holder
Counsel for the respondent : Mr. Mehul Joshi, learned counsel
Hon'ble Rakesh Thapliyal, J. (Oral)
1. The present C482 application is moved along with the
Compounding Application (IA/1/2024), for quashing of the
judgment and order dated 23.03.2023 passed by the IInd
Judicial Magistrate, Haridwar, in Complaint Case No. 167 of
2020 'Sangeeta Aggarwal vs. Mahesh Chandra Kushwaha' as
well as the judgment and order dated 21.10.2023 passed by
the Vth Additional Sessions Judge in Criminal Appeal No. 55
of 2023 'Mahesh Chandra Kushwaha vs. State of
Uttarakhand and another', whereby, the judgment passed
by the Trial Court dated 23.03.2023 was affirmed.
2. Present applicant is in jail. Son of the applicant and the
respondent no. 2/complainant are present in Court and they
are identified by their respective counsel. The compounding
application is supported with the affidavit of the son of the
applicant and respondent no. 2.
3. It is a case in which the complaint was filed by the
respondent no. 2 under Section 138 of Negotiable
Instruments Act in respect of a cheque of an amount of Rs.
12,00,000/- (Rupees Twelve Lakh Only) in which after
taking cognizance the proceedings were initiated and
concluded and the present applicant was convicted by the
judgment dated 23.03.2023 passed by the IInd Judicial
Magistrate, Haridwar.
4. Being aggrieved with the said judgment, a criminal
appeal, bearing Criminal Appeal No. 55 of 2023 was also
preferred by the applicant, which was dismissed and the
judgment passed by the Trial Court was affirmed.
5. Now, the compounding application has been moved
with this contention that the accused applicant settled the
dispute with the respondent no. 2/complainant and paid a
sum of Rs. 10,60,000/- to the respondent no. 2/
complainant. This Court interacts with the respondent no.
2/complainant and she submits that she is satisfied with this
amount and she does not want to proceed further.
6. The Hon'ble Supreme Court in the case of Damodar S.
Prabhu vs. Sayed Babalal H, 2010 (5) SCC 663 framed
certain guidelines with regard to the litigation in cheque
bouncing cases, which are as follows:-
"21. With regard to the progression of litigation in cheque
bouncing cases, the learned Attorney General has urged this
Court to frame guidelines for a graded scheme of imposing
costs on parties who unduly delay compounding of the
offence. It was submitted that the requirement of deposit of
the costs will act as a deterrent for delayed composition, since
at present, free and easy compounding of offences at any
stage, however belated, gives an incentive to the drawer of
the cheque to delay settling the cases for years. An
application for compounding made after several years not
only results in the system being burdened but the
complainant is also deprived of effective justice. In view of
this submission, we direct that the following guidelines be
followed:
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 court
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.
7. The present C482 Application has been moved along
with the Compounding Application, therefore, as per the
guidelines as framed by the Hon'ble Supreme Court in the
case of Damodar S. Prabhu (supra), the Compounding
Application can be allowed on the condition that the accused
pays 15% of the cheque amount by way of costs.
8. Since in the present case the accused/applicant was
convicted and the same was affirmed by the appellate Court,
therefore, this Court is of the view that the Compounding
Application, preferred along with the present C482
Application should be allowed on the condition that the
accused/applicant after being released, shall deposit 15% of
the cheque amount by way of costs with the Uttarakhand
State Legal Services Authority.
9. The present applicant is in jail and on his behalf his son
has filed the affidavit in support of the Compounding
Application, who undertakes that the accused/applicant shall
deposit 15% of the cheque amount by way of costs with the
Uttarakhand State Legal Services Authority within a month
from the date of release of the accused/applicant.
10. Thus, since the parties have settled their disputes and
a sum of Rs. 10,60,000/- (Rupees Ten Lakh Sixty Thousand
Only) has already been paid by the accused/applicant to the
respondent/complainant, who admits this fact and as such,
this Court is of the view that the Compounding Application
deserves to be allowed subject to the condition that the
accused/applicant deposits 15% of the cheque amount by
way of costs with the Uttarakhand State Legal Services
Authority within a month from the date of his release.
11. Accordingly, the Compounding Application is allowed.
12. Orders passed by the Trial Court dated 23.03.2023
passed by the IInd Judicial Magistrate, Haridwar, in
Complaint Case No. 167 of 2020 'Sangeeta Aggarwal vs.
Mahesh Chandra Kushwaha' as well as the judgment and
order passed by the Vth Additional Session Judge in Criminal
Appeal No. 55 of 2023 'Mahesh Chandra Kushwaha vs. State
of Uttarakhand and another' are set aside and the
accused/applicant is acquitted with this condition that after
being released, he shall deposit 15% of the cheque amount
by way of costs with the Uttarakhand State Legal Services
Authority within a month.
13. Accordingly, C482 application thus stands disposed of.
___________________________
Rakesh Thapliyal, J.
Dt: 04.07.2024
Mahinder/
