Hardeep Thakur vs Rajesh

Sandeep Sharma, J

By way of instant Cr. Revision filed under S. 397 read with 401 CrPC, challenge has been laid to judgment dated 9.1.2020 passed by learned

Additional Sessions Judge-II, Shimla camp at Rohru, Himachal Pradesh in Cr. Appeal No. 20-R/10 of 2018, affirming the judgment of conviction and

order of sentence dated 2.11.2018 passed by learned Additional Chief Judicial Magistrate, Court No.1 Rohru, District Shimla in Complaint Case No.

35-3 of 2018, whereby learned court below, while holding petitioner-accused guilty of having committed offences 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 to

pay compensation of Rs.1,30,000/-.

Precisely, the facts of the case as emanate from record are that the respondent-complainant (hereinafter, ‘complainant’) instituted a

complaint under S.138 of the Act in the court of learned Additional Chief Judicial Magistrate, Court No.1, Rohru, alleging therein that during apple

season 2017, accused purchased apple boxes from him for a total consideration of Rs.1,11,550/-, and, in discharge of said liablilty, accused issued a

cheque bearing No. 897675, dated 20.10.2017, amounting to Rs. 1,11,550/- drawn on Punjab National Bank,. Rohru. However, the fact remains that

the aforesaid cheque on presentation to bank concerned was dishonoured on account of insufficient funds in the account of the accused. After receipt

of memo from bank concerned, complainant sent statutory demand notice dated 15.12.2017 to the accused calling upon him to make good the

payment, within 15 days from the date of receipt of notice. Since despite aforesaid notice, accused failed to make good the payment, complainant was

compelled to institute proceedings under S.138 in competent court of law.

Learned trial Court, on the basis of material available on record held the accused guilty of having committed offence punishable under S.138 of the

Act and convicted and sentenced him as per description given herein above.

Being aggrieved and dissatisfied with aforesaid judgment of conviction and order of sentence recorded by learned trial Court, accused preferred an

appeal in the court of learned Additional Sessions Judge-II, Shimla camp at Rohru, District Shimla, who, vide judgment dated 9.1.2020 dismissed the

appeal. In the aforesaid background, accused has approached this court in the instant proceedings, praying therein for his acquittal after setting aside

judgments and order of conviction recorded by learned courts below.

Vide order dated 17.3.2021, this court suspended the substantive sentence imposed by learned trial Court, subject to depositing entire amount of

compensation by the accused but before aforesaid amount could be deposited, the accused has entered into a compromise which has been placed on

record, whereby petitioner has agreed to make complete payment of compensation amount, awarded by learned trial Court. As per agreement, an

amount of Rs.80,000/- has been paid in cash to the complainant and accused has agreed that the sum of Rs.32,500/-lying deposited with the learned

trial Court can be ordered to be released in favour of the complainant.

This court with a view to ascertain the correctness and genuineness of compromise placed on record, deemed it fit to cause presence of the

complainant. Complainant has come present in the court and states on oath that he of his own volition and without there being any external pressure,

has entered into compromise with the accused. He further states that a sum of Rs.80,000/- stands received by him and accused has expressed his no

objection for the release of Rs.32,500/-lying deposited with learned trial Court in his favour and as such, he shall have no objection in case prayer

made on behalf of accused for compounding the offence and acquitting him of the charges framed against under S.138 of the Act is accepted. His

statement is taken on record.

Mr. Romesh Verma, learned counsel for the complainant fairy states that since the complainant of his own volition has entered into compromise

with the accused, this court can exercise power under S.147 of Act and proceed to compound the offence.

Having carefully perused the averments contained in the compromise, this court is convinced and satisfied that the entire amount of compensation

stands paid to the accused and as such, there appears to be no impediment in accepting the prayer made in the present petition in view of the

provisions contained under S.147 of the Act, as well as .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.

In view of above, present revision is allowed. Judgments/order of conviction and sentence passed by both the learned Courts below are quashed

and set aside and accused is acquitted of the charges framed against him under S.138 of the Act. Learned trial Court .is directed to release

Rs.32,500/- alongwith interest in favour of the complainant by remitting the same into his savings bank account, details whereof shall be supplied by

the complainant within a week to the learned trial Court. Since the petitioner is behind the bars, learned court below is directed to prepare and issue his

release warrants forthwith, in case he is not required in any other case.

Petition stands disposed of in the afore terms, alongwith all pending applications.

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