Naresh Thakur vs Satish Kumar Sharma

Sandeep Sharma, J

Instant criminal revision petition filed under Section 397 read with Section 401 of Criminal Procedure Code, lays challenge to judgment dated 22.09.2022 passed by learned Sessions Judge, Shimla, District Shimla, H.P., in Criminal Appeal No. 8-S/10 of 2022 affirming the judgment of conviction and order of sentence dated 30.10.2021/30.12.2021 passed by learned Additional Chief Judicial Magistrate, Court No. I, Shimla, District Shimla, H.P., in Case Computer Regd. Case No. 900952/2015, whereby court below, while holding the petitioner-accused guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (for short ‘Act’) convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 1,80,000/- to the respondent-complainant.

Precisely, the facts of the case as emerge from the record are that respondent-complainant (for short ‘complainant’) filed a complaint under Section 138 of the Act in the competent court of law, alleging therein that accused with a view to discharge his liability issued cheque bearing No. 404567 amounting to Rs. 1,00,000/- in favour of the complainant, but fact remains that aforesaid cheque on its presentation, was dishonoured. Since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, complainant was compelled to initiate proceedings before the competent Court of law under Section 138 of the Act.

Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 30.10.2021/30.12.2021, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him as per the description given hereinabove.

Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned court below, accused preferred an appeal in the court of learned Sessions Judge, Shimla, District Shimla, HP, which came to be dismissed vide judgment dated 22.09.2022, as a consequence of which, judgment of conviction recorded by the learned trial Court came to be upheld. In the aforesaid background, present petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the courts below.

Vide order dated 01.12.2022, this court suspended the substantive sentence imposed by the learned trial Court below subject to petitioner’s depositing 50% of the compensation amount and furnishing personal bond in the sum of Rs. 15,000/- within a period of four weeks. Aforesaid order though was duly complied with by the petitioner-accused, but despite service, complainant failed to come present and as such, he was ordered to be proceeded ex-parte on 15.03.2023. However, this court after having admitted the matter again issued notice to the complainant, but yet he failed to come present.

Before the case at hand could be heard and decided on its own merit, petitioner-accused has filed an application bearing No. 2041 of 2024 under Section 147 of the Act, praying therein for compounding the offence on the ground that entire amount of compensation awarded by the learned court below stands deposited and same can be ordered to be released in favour of the complainant.

Mr. H.C.Sharma, learned for the petitioner-accused, while making this court peruse averments contained in the aforesaid application, stated that since the petitioner-accused is ready and willing to pay the entire amount of compensation being deposited with the court below, this court while exercising the power under Section 147 of the Act may compound the offence.

Having perused averments contained in the aforesaid application, coupled with the fact that entire compensation stands deposited with the trial Court and petitioner-accused has no objection in ordering of release of compensation in favour of complainant, this court finds no impediment in accepting the prayer made on behalf of the petitioner-accused for compounding of offence, while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Court in Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663, wherein it has been 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.

However, in JIK Industries Limited and others versus Amar Lal V. Jumani and another 2012(3) SCC 255, Hon'ble Apex Court observed that as a result of Section 147 of Negotiable Instrument Act offences under this Act have been made compoundable but main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be washed away nor can the same be substituted by virtue of Section 147 of Negotiable Instrument Act.

In Meters and Instruments Private Limited and another versus Kanchan Mehta (2018) 1 SCC 560, Hon'ble Apex Court has contended that in a case of Negotiable Instrument Act, even in absence of consent of complainant, the Court, in the interest of justice on being satisfied that complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

Even, in suo-moto writ petition (CRL) No. (2) of 2020 in Re:-Expeditious trial of cases under Section 138 of the Negotiable Instrument Act, 1881, it has been observed by Hon'ble Apex Court that judgment in Meters and Instruments (supra) conferring power on the trial Court to discharge an accused under Section 138 of Negotiable Instruments Act is not a good law. So far as observations in suo-moto Civil Writ Petition No. 2/20 are concerned, the same are based on the observation that Section 258 Cr.P.C. is not applicable in summons case instituted on complaint. Observations in this regard are related to power of the Trial Magistrate but not with respect to the inherent powers of the High Court.

Keeping in view the provisions of Section 147 of Negotiable Instruments Act coupled with inherent power of the High Court under Section 482 Cr.P.C., in the interest of justice, High Court is not precluded from compounding the case in absence of consent of complainant where complainant is duly compensated as Section 138 of the Negotiable Instrument Act does not provide that it is mandatory for the Court to sentence respondent-accused for imprisonment in all eventualities but there is option to the Court to impose sentence of imprisonment or fine or both.

Consequently, in view of the discussion made hereinabove as well as law taken into consideration, present matter is ordered to be compounded and impugned judgments of conviction and sentence dated 30.10.2021/30.12.2021 and 22.09.2022, passed by the courts below are quashed and set-aside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. Interim order, if any, is vacated. Bail bonds, if any, are discharged. The petition is disposed of alongwith pending applications, if any.

Since complainant was unnecessarily embroiled in litigation for realization of his own money, petitioner-accused is directed to pay a sum of Rs. 10,000/- to the complainant, as litigation charges, payable within a period of four months, failing which, complainant would be at liberty to get the present petition revived so that appropriate action in accordance with law is taken against the petitioner-accused.