Gaurav Sharma vs Ishwari Nand

Anoop Chitkara, J

The petitioner, who stands convicted for the commission of offence punishable under Section 138 of the Negotiable Instruments Act vide judgment dated 26.7.2018, passed by learned Additional Chief Judicial Magistrate, Shimla, HP, in Criminal Case No.317/3 of 2016, titled as Ishwari Nand Mehta Vs Gaurav Sharma, and his application under Section 389, Cr.PC for suspension of sentence stands dismissed in default by the order dated 7.1.2019 passed by learned Sessions Judge, Shimla H.P., in Criminal appeal, has come up before this Court under Section 482, Code of Criminal Procedure, by filing the present petition.

Today, when the matter is taken up, Mr. Sanjay Sharma, learned counsel appearing for the convict states that the dispute pertains to bouncing of cheque, which stands settled/compromised between the parties. Mr. Sanjay Sharma, Advocate further submits that after the dismissal of his application for suspension of sentence by learned Sessions Judge, Shimla on 7.1.2019, now the petitioner stands arrested and he is in judicial custody for the last 20 days.

Mr. V.S. Chauhan, learned senior counsel instructed by Mr. Ajay Kashyap, learned counsel for the respondent submits that he has also received instructions about the out of court settlement between the petitioner/convict and the respondent/complainant. Mr. V.S. Chauhan, learned senior counsel on instructions further submits that the complainant has received entire amount to his full satisfaction and now nothing is required to be received by him. Mr. V.S Chauhan, learned senior Advocate on instructions further submits that he has no objection that if this matter is comprised; his conviction is set aside, and he is directed to release from prison as soon as possible.

Mr. Sanjay Kumar Sharma, learned counsel for the petitioner/convict on instructions prays that the matter be compounded in terms of the judgment passed by the Hon'ble Supreme Court of India in Damodar S. Prabhu V. Sayed Babalal H., (2010) 5 SCC 663.

In view of the judgment passed by Hon'ble Supreme Court of India in Damodar S. Prabhu (supra), the law is well settled that even when the entire money is paid then the complainant cannot have any objection to such compromise and 15% of the cheque amount is to be paid by the accused to the Himachal Pradesh State Legal Services Authority.

Learned counsel for the petitioner-convict seeks time to deposit the 15% of the cheque amount of Rs.3,80,000/- to the Himachal Pradesh State Legal Services Authority, Learned counsel for the complainant has no objection if such time is granted to the petitioner.

The jurisprudence behind the N.I. Act is that the business transactions are honoured. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are simply to execute the recovery of cheque amount by showing teeth of penalty loss.

This Court has inherent powers under Section 482 of the Code of Criminal Procedure which are further supported by Section 147 of the N.I. Act to interfere in this kind of matter where parties have paid the entire money and where the complainant does not object to clear all the proceedings.

In view of the entirety of the facts of the case, as well as judicial precedents, a few of which have been mentioned hereinabove, I am of the considered opinion that continuation of these proceedings will not suffice any fruitful purpose whatsoever. Therefore, I am of the considered opinion that in view of the compromise, this is a fit case where the inherent jurisdiction of the High Court under Section 482 of the Code of Criminal Procedure read with 147 of Negotiable Instruments Act, is invoked to compound the offence and consequently to quash the above mentioned FIR and consequent proceedings.

In Shakuntala Sawhney v. Kaushalya Sawhney, (1979) 3 SCR 639, at p 642, Hon'ble Supreme Court observed as follows:

"The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion."

Consequently, in view of compounding of offences, the judgment dated 26.7.2018, passed by learned Additional Chief Judicial Magistrate-2, Shimla, in Criminal Case No.317/3 of 2016, titled as Ishwari Nand Mehta Vs Gaurav Sharma, convicting and sentencing the petitioner, is set aside and quashed. Consequently, the petitioner is acquitted of the offence under Section 138 of the Act.

This compounding is subject to the convict/accused depositing 15% of the cheque amount, in terms of the judgment passed by a Larger Bench of Hon'ble Supreme Court in Damodar S. Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, whereby following law for compounding of offences punishable under Negotiable Instruments Act, 1881 was laid down:

"....21...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.

Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority."

The amount of cheque in question was Rs.3,80,000/-, 15% of which, comes out to be Rs.57,000/-. The petitioner shall deposit the amount of Rs.57,000/-, on or before 31.12.2020, failing which, this entire order including of compounding shall automatically stand canceled and this petition shall be posted for hearing on merits. However, in extraordinary circumstances, the petitioner may approach this Court for extension of time to deposit the compounding fee. Petitioner to file receipt in the Registry.

Mr. Sanjay Kumar Sharma, learned counsel for the petitioner submits that the petitioner is presently undergoing his sentence for the aforesaid conviction and is confined in Model Central Jail, Kanda, District Shimla. Given above, the Registry is directed to prepare release warrant.

The learned trial Court shall release all the amount deposited in this case, if any, alongwith interest in favour of the respondent, in his bank account in the manner, as desired by him immediately on production of certified copy of this judgment,

The Registry is directed to prepare the release warrant for release of the convict undergoing his sentence at Model Central Jail, Kanda. Registry to send release warrant, at the earliest.

Mr. V.S Chauhan, learned senior counsel submits that since the matter is compromised, as such, the complainant shall not like to challenge this judgment in future. Given above, there is nothing to comply with Section 437A, Cr.PC. As such, the petition is allowed. The impugned order of conviction and sentence passed by learned Additional Chief Judicial Magistrate, Shimla is set aside. The appeal pending in file of learned Sessions Judge, Shimla is directed to be closed having become infractuous and the convict-petitioner is acquitted and directed to be released from prison. The petitioner shall be released without any delay.

Accordingly petition stands disposed of. All pending application(s), if any, also stand disposed of.

Authenticated copy.