Ajay Kumar vs Dev Raj And Others

Sandeep Sharma, J

Instant criminal revision petition filed under Ss. 397 and 401 CrPC, lays challenge to judgment dated 11.1.2022 passed by learned Sessions Judge, Kangra at Dharamshala, District Kangra, Himachal Pradesh in Cr. Appeal No. 27-K/X/2019, affirming judgment of conviction and order of sentence dated 25.6.2019 passed by learned Judicial Magistrate First Class, Court No,2 Kangra, District Kangra, Himachal Pradesh in Cr. Complaint No. 88-III/2016, whereby learned trial Court, while holding petitioner-accused (hereinafter, ‘accused’) guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, ‘Act’) convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 1.30 Lakh to the respondent-complainant (hereinafter, ‘complainant’)

Precisely, the facts of the case, as emerge from the record, are that complainant, instituted complaint under S. 138 of the Act before learned Judicial Magistrate First Class, Court No.2 Kangra, Himachal Pradesh alleging therein that he lent Rs. 1.00 Lakh to the accused on his request. Though, the aforesaid amount was to be repaid within one year but since the accused failed to make payment of the amount, he issued a cheque amounting to Rs. 1.00 Lakh drawn upon Punjab National Bank, Sidhpur from his account, in favour of the complainant. However, the fact remains that the said cheque on its presentation was dishonoured on account of ‘insufficient funds’ in the account of the accused. Since, despite having received legal notice served by the complainant, petitioner failed to make good the payment within time stipulated in the legal notice, he (complainant) was compelled to institute proceedings under S. 138 of the Act against the accused in the competent Court of law, which on the basis of evidence adduced on record by respective parties, held the accused guilty of having committed offence punishable under S.138 of the Act and accordingly convicted and sentenced him as per description given above.

Being aggrieved and dissatisfied with judgment of conviction and order of sentence, accused preferred an appeal before learned Sessions Judge Kangra at Dharamshala but the same was dismissed vide judgment dated 11.1.2022. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal after setting aside judgments of conviction and order of sentence passed by learned Courts below.

On 7.2.2022, this court suspended substantive sentence imposed upon the accused by learned trial Court subject to depositing the entire amount of compensation awarded by learned trial Court.

Pursuant to aforesaid direction issued by this Court, entire amount of compensation of Rs. 1.30,000/- stands deposited with learned trial Court. Learned counsel for the accused states that, as per instructions imparted to him by his client, petitioner is ready and willing to get the amount release in favour of the complainant and thereafter, this court, while exercising power under S. 147 of Act may proceed to compound the offence and acquit the accused of the charges framed under S.138 of the Act.

Mr. H.R. Dhiman, learned counsel for the complainant fairly states that in case entire amount awarded by learned court below, is ordered to be released in favour of his client, he shall have no objection in case, prayer made on behalf of the accused, for compounding of offence is allowed and he(accused) is acquitted of the charge framed under S.138 of the Act.

Since the accused has no objection to release entire amount of compensation deposited by him with learned trial Court and further the complainant also has no objection for compounding the offence, in the event of release of entire amount of compensation in his favour, this court sees no impediment in accepting prayer made on behalf of the accused for compounding of offence under Section 147 of Act and in terms of guidelines laid down by Hon'ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein Hon'ble Apex Court has categorically held that court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction by the courts below.

Consequently, in view of the above, present matter is ordered to be compounded and impugned judgments of conviction and order of sentence passed by the courts below are quashed and set-aside. Petitioner-accused is acquitted of the charges framed against him under Section 138 of the Act.

Petition stands disposed of in the afore terms, alongwith all pending applications. Bail bonds, if any, furnished by the accused are discharged.

Learned Judicial Magistrate First Class, Kangra is directed to release the entire amount of compensation deposited by the accused with it, in favour of complainant, alongwith upto date interest, and remit the same in the savings bank account of the complainant, details whereof shall be furnished by him within one week..