Dinesh Kumar vs M/S A.K. Enterprise

Sandeep Sharma, J

By way of instant criminal revision petition filed under S.397 and 401 CrPC, challenge has been laid to judgment dated 21.3.2020 passed by learned Sessions Judge, Solan, Himachal Pradesh in Cr. Appeal No. 52-S/10 of 2019, affirming the judgment of conviction and order of sentence dated 25.10.2019/31.10.2019 passed by learned Chief Judicial Magistrate, Solan, District Solan, Himachal Pradesh in Criminal Complaint No. 3/3 of 2016/13, whereby learned trial Court, while holding the petitioner-accused (hereinafter, 'accused') guilty of having committed offence punishable under S.138 of the Act, (hereinafter Act'), convicted and sentenced to undergo simple imprisonment for a period of six month and to pay a compensation of Rs.25,000/- to the respondent-complainant (hereinafter, 'complainant').

Precisely, the facts of the case, as emerge from the record, are that the complainant instituted a complaint under S.138 of Act in the competent court of law alleging therein that accused deals in purchase and sale of different plastic products and purchased fiber white cloth, coloured cloth etc. from the complainant and in discharge of his liability, issued three cheques Nos. 100025, dated 105..2013 for Rs. 10,000/-, cheque No. 100026, dated 10.6.2013 for Rs. 13,880/- and cheque No. 1000218, dated 29.5.2013 for Rs. 14,000/- /- to the complainant, but the fact remains that the aforesaid cheques on their presentation for encashment, were dishonoured on account of insufficient funds, as such, complainant was compelled to institute the complaint under S.138 of the Act.

Learned trial Court on the basis of evidence led 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 as per description given herein above.

Being aggrieved and dissatisfied with judgment of conviction and order of sentence recorded by learned trial Court,, accused preferred an appeal before learned Sessions Judge, Solan, Himachal Pradesh, but the same was also dismissed vide judgment dated 21.3.2020. 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 recorded by learned courts below.

Vide order dated 25.2.2021, this court, while suspending the substantive sentence imposed upon the accused by learned trial Court, directed the accused to deposit entire amount of compensation. In compliance to the same, accused has deposited Rs.45,000/- with the learned trial Court.

Today during proceedings of the case, learned counsel for the respondent, on instructions, states that since entire amount of compensation stands deposited with the learned trial Court and accused is ready and willing to get the said amount released in favour of the complainant, this court may proceed to order compounding of the offence in exercise of power under S.147 of the Act.

Mr. Manohar Lal Sharma, learned counsel representing the complainant, who is otherwise present in the court states that though the complainant has no objection in compounding the offence but he may be awarded some amount on account of litigation expenses incurred by him, for recovery of his own amount

Having taken note of the fact that entire amount stands deposited in this court and learned trial Court and accused has no objection in releasing the same in favour of the complainant, this court sees no difficulty in compounding the offence while exercising power under S. 147 of the 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, whereby it has been held that court, while exercising power under S.147 can proceed to compound offence, even in those cases, where accused stands convicted.

Consequently in view of above, present petition is allowed and judgments of conviction and order of sentence passed by learned Courts below are quashed and set aside. Accused is acquitted of charges framed against him under S. 138 of the Act. Learned court below is directed to release amount deposited by the accused in favour of complainant by remitting same into his savings bank account, details whereof shall be furnished by the complainant within one week.

Since the complainant was unnecessarily dragged into litigation for realisation of his own money, this court deems it fit to award Rs.10,000 as litigation expenses payable within four weeks, to the complainant. In case aforesaid amount is not paid within the time stipulated to the complainant, accused would beside rendering him for penal consequences, shall also render himself liable for contempt of court proceedings.

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