Himachal Pradesh High Court
Decided On: 17.12.2024 vs Bittam Garrage (Regd.) & Others on 17 December, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
1 Neutral Citation No. ( 2024:HHC:15549 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Criminal Revision No. 113 of 2024
Decided on: 17.12.2024
________________________________________________
Rajinder Singh ....Petitioner
Versus
Bittam Garrage (Regd.) & others
...Respondents
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
For the petitioner: Mr. Raj Negi, Advocate.
For the respondent: Mr. Vinod K. Gupta, Advocate.
________________________________________________
Sushil Kukreja, Judge (oral)
The instant petition has been filed by the
petitioner-accused under Section 397 read with Section 401
of Cr.P.C. against judgment dated 27.07.2023, passed by
learned Sessions Judge Kinnaur at Rampur Bushehar, in
criminal Appeal No. 50 of 2022, whereby the judgment of
conviction, dated 28.10.2022, passed by learned Additional
Chief Judicial Magistrate Rampur Bushahr, in criminal
Complaint No. 96-3-2017, was affirmed.
2. The brief facts, giving rise to the present petition,
can succinctly be summarized as under:
2(a). Complainant-Shri Shalender Gupta (since
deceased) was businessman dealing in repair of vehicles of
1
Whether reporters of Local Papers may be allowed to see the judgment?
2 Neutral Citation No. ( 2024:HHC:15549 )
Mahindra & Mahindra, having workshop at VPO Khaneri,
Tehsil Rampur, District Shimla. The accused got repaired
his vehicle, bearing registration No. HP26A-1993, in the
workshop of the complainant and after settlement of account,
he (accused) issued cheque bearing No. 283258, dated
01.04.2017, amounting to Rs.15,000/- and cheque No.
283259, dated 05.04.2017, amounting to Rs.15,000/- for
such repair work. The aforesaid cheques, on being
presented for encashment by the complainant, were
dishonoured with remarks “funds insufficient”. On
20.04.2017 the complainant issued a legal notice to the
accused, but despite receiving the same the accused failed
to make the payment of the aforesaid cheques amount.
Resultantly, the complainant filed a complaint under Section
138 of the Negotiable Instruments Act, 1881 (for short “the
Act”) before the learned Trial Court.
3. The learned Trial Court after conclusion of the
trial convicted the accused under Section 138 read with
Section 142 of the Act and sentenced him to undergo simple
imprisonment for a period of one year and to pay
compensation of Rs.41,000/- to the complainant.
3 Neutral Citation No. ( 2024:HHC:15549 )
4. Being dissatisfied, the accused/petitioner/convict
preferred an appeal before the learned Lower Appellate
Court, which was partly allowed, wherein judgment of
conviction, dated 28.10.2022, was upheld and substantive
sentence of simple imprisonment of one year was reduced to
simple imprisonment of six months and compensation
amount of Rs.41,000/- was also reduced to Rs.35,000/-.
Hence, accused/petitioner/convict-Rajinder Singh preferred
the instant petition under Section 397 read with Section 401
of Cr.P.C. with a prayer that his petition be allowed and the
impugned judgments and order of sentence passed by the
learned Courts below be set-aside and he be acquitted.
5. During the pendency of the instant petition, an
application (Cr.MP No. 5138 of 2024) under Section 147 of
the Act read with Section 482 of Cr.P.C. has been filed by
the petitioner-accused, seeking permission of this Court to
compound the offence by setting-aside the judgment of
conviction, dated 28.10.2022, passed by learned Additional
Judicial Magistrate, Rampur Bushahr, District Shimla, H.P.,
in Criminal Complaint No. 96-3-2017, and affirmed vide
judgment dated 27.07.2023, passed by learned Sessions
4 Neutral Citation No. ( 2024:HHC:15549 )
Judge, Kinnaur, Sessions Division at Rampur Bushahr,
District Shimla, H.P., in Criminal Appeal No. 50 of 2022.
6. Today, the statements of the petitioner-accused,
who is present before this Court, and the learned counsel for
the respondents (LRs of the complainant) have been
recorded and separately placed on the file.
7. In his statement, the petitioner/accused Rajinder
Singh stated that on the complaint filed by M/s Bittam
Garrage (Regd.), through its proprietor Shalender Gupta
(since deceased), he has been convicted by the Court of
learned Additional Chief Judicial Magistrate, Rampur
Bushahr, vide judgment of conviction, dated 28.10.2022,
which was further affirmed by learned Sessions judge
Kinnaur at Rampur Bushehar, vide judgment dated
27.07.2023 and the order of sentence was modified. He has
further stated that now he had compromised the matter with
the LRs of deceased complainant Shalender Gupta by
depositing the entire compensation amount of Rs.35,000/-
i.e., Rs.23,500/- before the Registry of this Court and
Rs.11,500/- before the learned Trial Court, therefore, in view
of the aforesaid compromise, he may be acquitted of the
offence punishable under Section 138 of the Act.
5 Neutral Citation No. ( 2024:HHC:15549 )
8. Shri Vinod K. Gupta, Advocate, stated that he
has been authorized by the respondents to make a
statement on their behalf. He has further stated that the
matter has been compromised with the petitioner/accused
and the respondents have no objection, in case the judgment
of conviction, dated 28.10.2022, passed by the Court of
learned Additional Chief Judicial Magistrate, Rampur
Bushahr and further affirmed by learned Sessions Judge
Kinnaur at Rampur Bushehar, vide judgment dated
27.07.2023, are quashed and set-aside and the petitioner-
accused is acquitted of the offence punishable under
Section138 of the Act.
9. I have heard the learned counsel for the
petitioner, learned counsel for the respondent and gone
through the material available on record.
10. Having taken note of the fact that the petitioner-
accused and the respondents (LRs of the complainant) have
settled the matter and the respondents have no objection in
compounding the offence, therefore, this Court sees no
impediment in accepting the prayer made on behalf of the
accused-petitioner for compounding of offence while
exercising power under Section 147 of the Act as well as in
6 Neutral Citation No. ( 2024:HHC:15549 )
terms of guidelines issued by the Hon’ble Apex Court in
Damodar S. Prabhu V. Sayed Babalal H., (2010) 5 SCC
663, wherein the Hon’ble Apex Court has held as under:-
“10. At present, we are of course concerned with
Section 147 of the Act, which reads as follows:-
“147. Offences to be compoundable-
Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), every
offence punishable under this Act shall be
compoundable.”
At this point, it would be apt to clarify that in view of
the non-obstante clause, the compounding of
offences under the Negotiable Instruments Act,
1881 is controlled by Section 147 and the scheme
contemplated by Section 320 of the Code of
Criminal Procedure (hereinafter “CrPC“) will not be
applicable in the strict sense since the latter is
meant for the specified offences under the Indian
Penal Code, 1860.
11. So far as the CrPC is concerned, Section
320 deals with offences which are compoundable,
either by the parties without the leave of the court
or by the parties but only with the leave of the
Court. Sub-section (1) of Section 320 enumerates
the offences which 9 are compoundable without the
leave of the Court, while subsection (2) of the said
section specifies the offences which are
compoundable with the leave of the Court.
12. Section 147 of the Negotiable Instruments
Act, 1881 is in the nature of an enabling provision
which provides for the compounding of offences
prescribed under the same Act, thereby serving as
an exception to the general rule incorporated in
sub-section (9) of Section 320 of the CrPC which
states that ‘No offence shall be compounded
except as provided by this Section’. A bare reading
of this provision would lead us to the inference that
offences punishable under laws other than the
Indian Penal Code also cannot be compounded.
However, since Section 147 was inserted by way of
7 Neutral Citation No. ( 2024:HHC:15549 )
an amendment to a special law, the same will
override the effect of Section 320(9) of the CrPC,
especially keeping in mind that Section 147 carries
a non obstante clause.”
11. In K. Subramanian Vs. R. Rajathi; (2010) 15
Supreme Court Cases 352, it has been held by the
Hon’ble Apex Court that in view of the provisions contained
in Section 147 of the Act read with Section 320 of Cr.P.C.,
compromise arrived at can be accepted even after
recording of the judgment of conviction. The relevant portion
of the judgment is reproduced as under:-
“6. Thereafter a compromise was entered into
and the petitioner claims that he has paid Rs.
4,52,289 to the respondent. In support of this claim,
the petitioner has produced an affidavit sworn by
him on 1.12.2008. The petitioner has also produced
an affidavit sworn by P. Kaliappan, Power of
attorney holder of R. Rajathi on 1.12.2008
mentioning that he has received a sum of Rs.
4,52,289 due under the dishonoured cheques in full
discharge of the value of cheques and he is not
willing to prosecute the petitioner.
7. The learned counsel for the petitioner states
at the Bar that the petitioner was arrested on
30.7.2008 and has undergone the sentence
imposed on him by the trial Court and confirmed by
the Sessions Court, the High Court as well as by
this Court. The two affidavits sought to be produced
by the petitioner as additional documents would
indicate that indeed a compromise has taken place
between the petitioner and the respondent and the
respondent has accepted the compromise offered
by the petitioner pursuant to which he has received
a sum of Rs.4,52,289. In the affidavit filed by the
respondent a prayer is made to permit the
petitioner to compound the offence and close the
proceedings.
8. Having regard to the salutary provisions of
Section 147 of the Negotiable Instruments Act read
8 Neutral Citation No. ( 2024:HHC:15549 )with Section 320 of the Code of Criminal
Procedure, this Court is of the opinion that in view
of the compromise arrived at between the parties,
the petitioner should be permitted to compound the
offence committed by him under Section 138 of the
Code.”
12. Since, in the instant case, the petitioner-accused
after being convicted under Section 138 of the Act, has
compromised the matter with the respondents, prayer for
compounding the offence can be accepted in terms of the
aforesaid judgments passed by the Hon’ble Apex Court.
13. Therefore, in view of the detailed discussion
made hereinabove as well as law laid down by the Hon’ble
Apex Court, the application is allowed and matter is ordered
to be compounded.
14. Accordingly, the present matter is ordered to be
compounded and the impugned judgment of conviction,
dated 28.10.2022, passed by learned Additional Chief
Judciial Magistrate, Rampur Bushahr, in Criminal Complaint
No. 96-3-2017, which was affirmed in appeal by learned
Sessions Judge, Kinnaur Sessions Division at Rampur
Bushahr, District Shimla, H.P., in Criminal Appeal No. 50 of
2022, are quashed and set-aside and the petitioner-accused
is acquitted of the charge framed against him under Section
138 of the Act. Bail bonds, if any, stand discharged.
9 Neutral Citation No. ( 2024:HHC:15549 )
15. Undisputedly, the total amount of the cheques is
Rs.30,000/-, however, the learned counsel for the petitioner
submitted that the petitioner is a poor person and the
imposition of compounding fee may be reduced.
16. In case K. Subramanian vs. R. Rajathi (supra),
the Hon’ble Apex Court had issued the guidelines with
respect to the imposition of compounding fee, which read as
under:-
“THE GUIDELINES
(i) In the circumstances, it is proposed as follows:
(a) That directions can be given that the writ of
summons be suitably modified making it clear to the
accused that he could make an application for
compounding of the offences at the first or second
hearing of the case and that if such an application is
made, compounding may be allowed by the Court
without imposing any costs on the accused.
(b) If the accused does not make an application
for compounding as aforesaid, then if an application for
compounding is made before the Magistrate at a
subsequent stage, compounding can be allowed
subject to the condition that the accused will be
required to pay 10% of the cheque amount to be
deposited as a condition for compounding with the
Legal Services Authority, or such authority as the Curt
deems fit.
(c) Similarly, if the application for compounding
is made before the Sessions Court or a High Court in
revision or appeal, such compounding may be allowed
on the condition that the accused pays 15% of the
cheque amount by way of costs.
(d) Finally, if the application for compounding is
made before the Supreme Court, the figure would
increase to 20% of the cheque amount.
... ... ... ... ... ... ...
10 Neutral Citation No. ( 2024:HHC:15549 )
25. The graded scheme for imposing costs is a
means to encourage compounding at an early
stage of litigation. In the status quo, valuable
time of the court is spent on the trial of these
cases and the parties are not liable to pay any
court fee since the proceedings are governed by
the Code of Criminal Procedure, even though the
impact of the offence is largely confined to the
private parties. Even though the imposition of
costs by the competent court is a matter of
discretion, the scale of costs has been suggested
in the interest of uniformity. The competent court
can of course reduce the costs with regard to the
specific facts and circumstances of a case, while
recording reasons in writing for such variance.
Bona fide litigants should of course contest the
proceedings to their logical end.”
17. Therefore, taking into consideration the law laid
down by the Hon’ble Apex Court (supra) and the financial
condition of the petitioner, since the competent Courts can
reduce the compounding fee with regard to the specific facts
and circumstances of the case, the petitioner is directed to
deposit token compounding fee of Rs.2,500/- (rupees two
thousand five hundred), only with the H.P. State Legal
Services Authority, Shimla, H.P., within four weeks from
today.
18. The petition stands disposed of accordingly, so
also the pending miscellaneous application(s), if any.
( Sushil Kukreja )
17th December, 2024 Judge
(virender)