Satish Kumar vs Rana Dayal And Another

Sandeep Sharma, J

Instant criminal revision petition filed under S.397 CrPC lays challenge to judgment dated 4.1.2020 passed by learned Additional Sessions Judge-II

Una, in Cr. Appeal 46/2019 titled Satish Kumar vs. Rana Dayal affirming the judgment/order of conviction dated 31.5.2019 passed by learned Judicial

Magistrate 1st Class, Court No. II, Una, in Cr. Complaint No. 719/2014 in case titled Rana Dayal vs. Satish Kumar, whereby learned court below,

while holding the petitioner-accused (hereinafter, ‘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 three months and to pay compensation of

Rs.80,000/-.

Precisely the facts as emerge from the record are that the respondent-complainant (hereinafter, ‘complainant’), instituted a complaint under

S.138 of the Act alleging therein that in the month of June, 2013, accused requested him to advance a loan of Rs.70,000/- for the treatment of his

mother. On account of cordial relations, complainant gave Rs.70,000/- to the accused, who with a view to discharge his liability issued cheque bearing

No. 001271 dated 17.2.2014 payable at IDBI bank Una in the sum of Rs.70,000/-, however, the fact remains that on presentation, said cheque was

dishonoured and as such, complainant issued a legal notice calling upon the accused to make good the payment. Since the accused failed to make the

payment within the period stipulated in the legal notice, complainant was compelled to institute proceedings under S.138 of the Act in the competent

court of law.

Learned court below on the basis of evidence adduced on record by parties, held the accused guilty of commission of offence punishable under

S.138 of the Act and convicted and sentenced him as per description given herein above.

Being aggrieved and dissatisfied with the judgment/order of conviction passed by learned trial court, accused preferred an appeal in the court of

learned Additional Sessions Judge II, which also came to be dismissed vide judgment dated 4.1.2020. In the aforesaid background, the accused has

approached this court in the instant proceedings, praying therein to acquit him of the charges framed against him after setting aside judgment/order of

conviction and sentence passed by learned courts below.

During proceedings of the case, learned counsel for the petitioner indicated his willingness to get the matter settled and informed this court that a

sum of Rs.28,000/- already stands paid to the complainant during the pendency of the trial before learned court below. He further stated that the

remaining amount shall be paid by the accused to the complainant.

On 6.3.2021, parties came present in the court and expressed their desire to get the matter settled amicably. During proceedings of the case today,

Mr. Dheeraj K. Vashishta, Advocate, appearing for the accused contended that since the entire amount as awarded by learned court below stands

deposited with the learned Courts below, same can be ordered to be released in favour of the respondent and this court while exercising power under

S.147 of the Act can proceed to compound the offence.

Mr. N.K. Thakur, learned Senior Advocate representing the complainant while fairly acknowledging the factum with regard to receipt of

Rs.28,000/- during pendency of trial, submitted that since the complainant was unnecessarily compelled to institute proceedings in the competent court

of law for realization of his own money, accused may be directed to pay some amount on account of litigation charges also.

Having heard learned counsel for the parties and perused material available on record this court finds that out of Rs.80,000/- a sum of Rs.28,000/-

was paid to the respondent which stands mentioned in the judgment of learned trial Court. Accused has deposited Rs.10,000 in this court in terms of

order dated 26.2.2020 and Rs.22,000/- and Rs.20,000/- respectively before learned trial Court and the first appellate court, meaning thereby, in total

complainant has deposited Rs.52,000/- in the courts, apart from Rs.28,000/- already paid to the respondent.

If the aforesaid sum of Rs.52,000/- lying deposited in various courts is ordered to be released in favour of the complainant, he can be said to have

received entire sum of Rs.80,000/-. Since both the parties have resolved to settle dispute inter se them, there appears to be no impediment in

exercising power under S.147 of Act and to do the needful in terms of judgment of Hon'ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H.

(2010) 5 SCC 663, whereby it has been categorically held that power under S.147 of the Act ibid can be exercised even in those cases, where

accused stands convicted.

However, having taken note of the fact that the complainant was unnecessarily dragged into litigation by the accused, an amount of Rs.15,000/- is

awarded as costs payable by the accused to the complainant, within a period of four weeks and Registry shall remit the said amount into the account

of the complainant, details whereof shall be furnished by the complainant within two weeks, on his making a formal application in this regard. It is

made clear that in case costs are not deposited within the time stipulated by this court, accused would render himself liable for penal consequences as

well as contempt of court proceedings. Further learned Courts below are directed to release the amount deposited by the accused with them, in favour

of the complainant, on his making formal application(s), in this regard.

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.