Nirjal Attri vs Brahm Dass Gautam

Vivek Singh Thakur, J

Present Revision Petition has been filed assailing judgment dated 29.08.2019, passed by learned Additional Sessions Judge, Ghumarwin District Bilaspur, H.P. (Camp at Bilaspur) in Criminal Appeal No.33/10 of 2018, titled as Nirjal Attri vs. Brahm Dass Gautam, whereby judgment and order of conviction dated 17.07.2018, passed by learned Additional Chief Judicial Magistrate, Court No.1, Ghumarwin, District Bilaspur H.P., in Criminal Case No.103/3 of 2016, titled as Brahm Dass Gautam vs. Nirjal Attri, convicting and sentencing the petitioner-accused to undergo simple imprisonment for one year and to pay compensation of Rs.8,00,000/- to the complainant, has been affirmed.

Today, petitioner Nirjal Attri as well as respondent Brahm Dass Gautam, are present in the Court, who have been duly identified by their respective learned counsel and their statements on oath have also been recorded separately.

In his statement, complainant Brahm Dass Gautam has stated matter has been amicably settled before learned Mediator and according to the compromise petitioner namely Nirjal Attri has agreed to make payment of Rs.9,00,000/- to him and for payment thereof, he has communicated no objection for release of Rs.1,60,000/- deposited by him in the trial Court at Ghumarwin and also for release of Rs.2,90,000/- deposited by him in the Registry of this Court and as a matter fact the said amount i.e. Rs.2,90,000/- stands released in his favour by orders of this Court. He has further stated that for remaining amount, petitioner has agreed to make payment in installments and first installment of Rs.70,000/- was to be made on or before 05.11.2020 and next seven installments are proposed to be made @ Rs.50,000/- per month on or before 5th of every month and last installment would be of Rs.30,000/- payable on or before 05.07.2021. he has further stated that as a matter of fact, petitioner has not paid first installment of Rs.70,000/-, however, he has undertaken to make payment thereof alongwith second installment and as such, petitioner has agreed to make the payment of Rs.1,20,000/- on or before 05.12.2020 and he has accepted his proposal as petitioner has communicated that he could not pay first installment for paucity of funds and he is making endeavour to make the funds available by borrowing the same from his father, who has applied for withdrawal of GPF as told by the petitioner. He has further stated that in turn, he has agreed to withdraw the complaint subject to payment of aforesaid amount of Rs.9,00,000/- to him, in total, with rider that in case of default, judgment of conviction and sentence be revived against the petitioner and he has prayed for disposal of present petition, in terms of compromise as narrated aforesaid and he has also stated that his deposition in this Court is out of his free will, consent and without any external pressure, coercion or threat of any kind.

Petitioner-accused Nirjal Attri, in his statement, has endorsed the amicable settlement, arrived at before learned Mediator as narrated by the respondent-complainant in his statement recorded on oath in his presence, to be true and correct and has undertaken to comply with the terms and conditions by ensuring payment of installments well in time, and to face the consequences on failure to do so. He has further stated that he had borrowed this amount from the respondent-complainant for someone else, but unfortunately, that person has expired and he (petitioner) had issued cheque for payment of the amount as a guarantee and, therefore, now he is liable to pay aforesaid amount. Like respondent he has also stated that his deposition in this Court is out of his free will, consent and without any external pressure, coercion or threat of any kind.

Consequently, in terms of settlement, respondent-complainant Brahm Dass is permitted to withdraw the complaint and matter is compounded and complaint arising out of dishonour of cheque under Section 138 of the Negotiable Instruments Act is permitted to be withdrawn and judgments of conviction and sentence passed by learned Courts below are quashed and set aside. Petitioner-accused is acquitted of the accusation framed against him.

Petitioner-accused-Nirjal Attri has submitted that amount was borrowed by him from the respondent for someone else, who has now expired and, therefore, liability has been fastened upon him as he has issued cheque against borrowed amount.

Learned counsel for the petitioner submits that considering entire facts and circumstances, petitioner may kindly be exempted from imposing compounding fee, particularly in the light of ratio of law laid down by the Apex Court in Damodar S. Prabhu Vs. Sayed Babalal H. 2010 (5) SCC 663, as clarified in Madhya Pradesh State Legal Services Authority Vs. Prateek Jain and another 2014 (10) SCC 690.

In the peculiar facts and circumstances of the case, I find that it is a fit case for exempting the compounding fee and accordingly the same is exempted.

In case of default in making payment as per installment agreed in the compromise, present case shall revive and judgments of conviction and sentence shall become operational.

Learned Additional Chief Judicial Magistrate, Court No.1, Ghumarwin District Bilaspur, H.P., is also directed to release the amount of Rs.1,60,000/- alongwith interest, if any accrued thereon, deposited by petitioner-accused-Nirjal Attri in Criminal Case No.103/3 of 2016, titled as Brahm Dass Gautam vs. Nirjal Attri, in favour of complainant-Brahm Dass Gautam by remitting the same in his Savings Bank Account No.12710107122 in H.P. State Cooperative Bank, Bum, Tehsil Ghumarwin District Bilaspur, H.P., IFSC HPSC0000127, on production of copy of this order by filing appropriate application.

Petition stands disposed of, in the aforesaid terms, so also the pending application(s), if any.

Copy dasti on usual terms.