Rajinder Kumar Sarswati vs Himachal Gramin Bank & Anr.

Present Criminal Revision Petition filed under Section 397 read with Section 401 of the Code of Criminal Procedure is directed against the judgment dated 1.9.2015, passed by learned Additional Sessions Judge-II Shimla, in Criminal Appeal No. 27-S/10 of 2015, affirming the judgment of conviction and sentence dated 17.3.2015, passed by learned Additional Chief Judicial Magistrate, Court No.2, Shimla in Case No. 833-3 of 2014/12, whereby learned trial Court while holding petitioner-accused guilty of having committed an offence punishable under Section 138 of the Negotiable Instruments Act, convicted and sentenced him to undergo simple imprisonment for one year and to pay compensation of Rs.1, 55,000/- in favour of the complainant.

Briefly stated facts, as emerged from the record are that respondent Himachal Gramin Bank (hereinafter referred to as the complainant) sanctioned loan amounting to Rs.1,50,000/- in favour of the petitioner-accused on 22.6.2007 on execution of necessary loan agreement and other documents against account No. 894INA00000023. As per agreement, petitioner-accused agreed to repay the loan amount in equated monthly installments alongwith floating rate of interest. Petitioner-accused after checking the accounts to clear part balance of existing liability, issued cheque bearing No.526661 i.e. Ex.CW1/C, dated 4.8.2012 in the sum of Rs.1,40,262/- of an account maintained by him in Himachal Gramin Bank, Khalini Branch, Shimla, H.P in favour of the bank. However, fact remains that on presentation, the cheque was dishonoured on account of "insufficient funds" in the account of the petitioner-accused vide memo Ex.CW1/D, dated 8.8.2012. Immediately, after receipt of information with regard to dishonouring of cheque, complainant got issued the legal demand notice Ex.CW1/E, dated 22.8.2012 to the petitioner, calling upon him to make the payment of cheque amount within a period of 15 days from the receipt of the notice, but fact remains that no steps, whatsoever, were taken by the petitioner-accused for making the payment in terms of the legal notice issued to him. In the aforesaid background, complainant initiated proceedings under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the Act) before the learned Additional Chief Judicial Magistrate, Court No.2, Shimla,H.P.

Learned trial Court after satisfying itself that a prima-facie case exists against the petitioner-accused, framed notice of accusation under Section 138 of the Act against the petitioner-accused, to which he pleaded not guilty and claimed trial.

Subsequently, the learned trial Court vide judgment dated 17.3.2015 held petitioner-accused guilty of having committed the offence punishable under Section 138 of the Act and accordingly convicted and sentenced him as per the description given hereinabove.

Feeling aggrieved and dissatisfied with the judgment of conviction and order of sentence passed by learned trial Court, present petitioner-accused filed an appeal under Section 374 of the Code of Criminal Procedure in the Court of learned Additional Sessions Judge-II Shimla, which came to be registered Cr. Appeal No.27-S/10 of 2015. However, fact remains that aforesaid appeal having been preferred by the petitioner-accused was dismissed, as a result of which, impugned judgment of conviction dated 17.3.2015 came to be upheld. In the aforesaid background, petitioneraccused approached this Court by way of instant criminal revision petition, praying therein for his acquittal after setting aside the judgment of conviction recorded by both the Courts below.

This Court vide order dated 14.12.2015, while admitting the present petition for hearing also suspended the sentence, as awarded by the Courts below subject to depositing of Rs.75,000/- within a period of four weeks and on furnishing personal bonds in the sum of Rs.10,000/- with one surety in the like amount to the satisfaction of learned trial Court. However, on 24.10.2016, learned counsel representing the petitioner stated at the Bar that petitioner is ready and willing to pay the entire cheque amount in terms of the judgment passed by the learned trial Court. Subsequently, on 6.12.2016, learned counsel representing the respondent No.1 stated that as per instructions received by him from the respondent-bank, an amount of Rs. 1,15,000/- stands deposited with the bank by the petitioner-accused.

Today, during the proceedings of the case, learned counsel representing the petitioner-accused produced two receipts dated 23.12.2016 & 26.12.2016 issued by the Himachal Gramin Bank to demonstrate that balance amount of Rs.25,262/- also stands deposited and as such, matter can be ordered to be compounded in terms of the law laid down by the Hon''ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H.(2015)5 SCC 663, because petitioner accused has already deposited the entire cheque amount, as ordered by the learned Court below.

Mr. Rakesh Kumar Thakur, learned counsel representing the respondent No.1 also acknowledged above mentioned receipts and admitted that now an amount of Rs. 1,40,262/- being cheque amount stands deposited with the bank. However, Mr. Rakesh Kumar Thakur, learned counsel submitted that since the bank is custodian of public money, petitioner-accused may also be directed to pay balance amount of Rs.15,000/- because admittedly learned trial Court had awarded compensation to the tune of Rs.1,55,000/- in lieu of cheque amount of Rs.1,40,262/-. Accordingly, in view of aforesaid submissions having been made by learned counsel for the parties, coupled with the facts that entire cheque amount stands deposited with the respondent-bank, this Court is of the view that present matter can be ordered to be compounded in view of the judgment passed by Hon''ble Apex Court in Damodar case (supra).

Consequently, in view of the aforesaid discussion made hereinabove, matter is ordered to be compounded and judgments passed by learned Courts below are quashed and set-aside. The petitioner-accused is acquitted of the notice of accusation framed against him under Section 138 of the Act, subject to depositing of 10,000/- by the petitioner-accused in the respondent bank within a period of 20 days on account of interest, failing which petitioner-accused would render himself liable to serve the sentence as imposed by the Courts below. It may be clarified that in the event of failure on the part of the petitioner-accused to deposit the amount of Rs.10,000/-, petitioner-accused besides rendering himself liable to serve the sentence as imposed by the Courts below shall also invite contempt proceedings for non-compliance of the order passed by this Court. The petition is disposed of along with pending applications, if any.

Copy dasti.