Neeta Ram vs Rakesh Kapoor

Sandeep Sharma, J

Instant criminal revision petition filed under S.397 read with S.401 CrPC, lays challenge to judgment dated 7.3.2020 passed by learned Additional Sessions Judge(I), Shimla, HP in Cr. Appeal no. 58-S/10 of 2018, affirming judgment/order of conviction and sentence dated 5.12.2018 passed by learned Judicial Magistrate 1st Class, Court No. 3, Shimla in Case No. 127-3 of 2018/15 titled Rakesh Kapoor vs. Neeta Ram, whereby learned Court below, while holding the petitioner-accused (hereinafter, 'accused') guilty of having committed offence punishable under S.138 of the Negotiable Instruments Act (hereinafter, 'Act'), convicted and sentenced the accused to undergo simple imprisonment for six months and to pay a compensation of Rs.3.00 Lakh to the respondent-complainant (hereinafter, 'complainant').

Precisely, the facts as emerge from the record are that the accused entered into a business deal with the complainant and complainant rented out 13 rooms alongwith kitchen in Hotel M/s Lalji Regency, High Court of Himachal Pradesh. As per agreement dated 5.4.2014, accused was to pay rent of the rooms. Allegedly, the accused failed to adhere to the terms and conditions of the agreement and committed default in payment of rent. However, subsequently, with a view to make good the payment, accused issued cheque bearing No. 400828 dated 28.3.2015 amounting to Rs.2.00 Lakh drawn at UCO bank Branch, HP High Court, Shimla. However the fact remains that the said cheque on its presentation, was dishonoured on account of insufficient funds. Since the accused failed to make good the payment within the time as stipulated in the legal notice issued to him, complainant lodged a complaint with the competent Court of law. Subsequently, learned Judicial Magistrate 1st Class, Shimla, on the basis of evidence led on record by the complainant, held the accused guilty of having committed offence punishable under S.138 of the Act and convicted and sentenced the accused, as per description give herein-above. Being aggrieved and dissatisfied with the impugned judgment/order of conviction and sentence, accused preferred an appeal in the court of learned Additional Sessions Judge(I), Shimla, which also came to be dismissed vide judgment dated 7.3.2020. In the aforesaid background, accused has approached this Court in the instant proceedings, praying therein for his acquittal after setting aside the judgments/order of conviction and sentence passed by learned Courts below.

On 21.9.2020, this Court suspended the substantive sentence imposed by learned Courts below, subject to deposit of entire amount of compensation. On 12.10.2020, Learned Counsel appearing for the parties informed the Court that during the pendency of the petition, parties to the lis have entered into a compromise. On that day, Learned Counsel appearing for the parties also informed this court that out of total amount of Rs.3.00 Lakh, Rs.1.50 Lakh remains to be received by the complainant, whereas, Rs. 1.50 Lakh has been agreed to be paid on or before 15.12.2020.

Mr. Ankur Sood, learned Counsel appearing for the accused also submitted before this Court that a sum of Rs. 40,000/- lying deposited with the local commissioner may be ordered to be released in favour of the complainant, which now otherwise stands released in his favour pursuant to orders passed by this court.

Having taken note of the amicable settlement arrived inter se parties, this Court, while adjourning case for today, deemed it necessary to cause presence of the parties, so that factum with regard to compromise could be ascertained. Pursuant to order dated 12.10.2020, parties have come present. Mr. Rakesh Kapoor, complainant, has come present in the court. He states on oath that he of his own volition and without there being any external pressure has entered into compromise with the accused, whereby both the parties have resolved to settle the dispute amicably inter se them. He further states that since entire amount of Rs.3.00 Lakh stands received by him in terms of judgment passed by learned trial Court, he shall have no objection in case prayer made in the present petition by the accused for compounding of the offence is allowed after setting aside impugned judgments/order of conviction and sentence. His statement is taken on record.

Though, in the case at hand, no separate application under S.147 of the Act, praying therein for compounding of offence has been filed, but, this Court having taken note of the fact that entire amount of compensation stands received by the complainant and he has no objection in case impugned judgments/order of conviction and sentence recorded by learned Courts below are quashed and set aside, sees no impediment in acceding to the oral prayer of the accused for compounding of the case, especially in view of power vested in this Court under S.147 of the Act and guidelines laid down by Hon'ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663,. Needless to say, Hon'ble Apex Court in judgment (supra) has categorically held that power under S.147 of the Act ibid can be exercised even in those cases, where accused stands convicted.

Consequently, in view of the law laid down by Hon'ble Apex Court in Damodar S. Prabhu (supra), present petition is allowed. Impugned judgments/order of conviction and sentence passed by both the learned Courts below are quashed and set aside. Petitioner is acquitted of the offence punishable under S.138 of the Act ibid. Bails bonds, if any, furnished by him are discharged.

The petition is disposed of in aforesaid terms, alongwith all pending applications, if any.

Copy Dasti.