Bir Singh vs Shyam Singh

Since parties and disputes involved in both the petitions are same and cheques were issued by the petitioner-accused (hereinafter, ''accused'') against same transaction, as such, with the consent of the parties, the petitions were taken up together for being disposed of by this common judgment.

Criminal Revision No. 403 of 2015 has been filed against judgment dated 18.8.2015 passed by the learned Additional Sessions Judge-I, Shimla in Criminal Appeal No. 46-S/10 of 2013, affirming judgment/order dated 30.4.2013/6.5.2013 passed by Judicial Magistrate 1st Class, Chopal, District Shimla, in Criminal Complaint No. 47-1/2011, whereby accused has been convicted and sentenced to undergo simple imprisonment, for one year and to pay a fine of Rs.60,000/- under Section 138 of Negotiable Instruments Act (hereinafter, ''Act''), out of which Rs.55,000/- is to be paid to the complaint, in default, to further undergo simple imprisonment, for three months.

Similarly, Criminal Revision No. 404 of 2015 has been filed against judgment dated 18.8.2015 passed by the learned Additional Sessions Judge-I, Shimla in Criminal Appeal No. 45-S/10 of 2013, affirming judgment/order dated 30.4.2013/6.5.2013 passed by Judicial Magistrate 1st Class, Chopal, District Shimla, in Criminal Complaint No. 37-1/2011, whereby accused has been convicted and sentenced to undergo simple imprisonment, for one year and to pay a fine of Rs.75,000/- under Section 138 of Negotiable Instruments Act (hereinafter, ''Act''), out of which Rs.70,000/- is to be paid to the complaint, in default, to further undergo simple imprisonment, for three months.

Briefly stated the facts as emerge from the record are that accused issued two cheque bearing No. 405269 dated 25.2.2011 amounting to Rs.50,000/- and No. 405270 dated 5.4.2011 amounting to Rs. 40,000/-, both drawn on UCO Bank, Chopal, District Shimla, for lawful consideration to the respondentcomplainant (hereinafter, ''complainant''). The cheques in question, were returned by the Bank due to ''insufficient funds'' on 8.3.211 and

4.2011, respectively. Complainant issued legal notice advising accused to make payment within stipulated period. On his failure to make payment, complainant initiated proceedings under Section 138 of the Act before the trial Court. The learned trial Court, found the accused guilty of having committed offence punishable under Section 138 of the Act and sentenced him to undergo imprisonment and to pay fine, as described above.

Accused being aggrieved, filed two separate criminal appeals before the learned Additional Sessions Judge-I, Shimla, who dismissed the same and upheld the judgments/orders passed by the learned trial Court. Hence, present petitions by the accused, seeking his acquittal, after setting aside the judgments of conviction recorded by learned Courts below.

During pendency of this case, learned counsel representing the accused made statement before this Court on 28.3.2017, that the accused is ready and willing to get the matter settled in terms of judgment passed by the Hon''ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663.

Today, during the proceedings of the case, learned counsel representing the accused, on the instructions having been imparted by the accused, who is present in the Court, stated that accused has deposited Rs.23,334/- vide receipt No. 259984 and Rs.18,334/- vide receipt No. 259983 on 2.7.2013 before the Judicial Magistrate 1st Class, Chopal and Rs.25,000/- vide Challan No. 4 and Rs.25,000/- vide Challan No. 5 both dated 7.1.2016 before the Civil Judge (Junior Division), Chopal. In total, accused has deposited Rs.91,668/- (Rupees Ninety One Thousand Six Hundred Sixty Eight) out of Rs.1,25,000/- and balance amount of Rs.33,332/- (Rupees Thirty Three Thousand Three Hundred Thirty Two), accused undertake to deposit in the Registry of the HP High Court, within one month from today, failing which accused shall be liable for penal consequences and contempt of Court proceedings. Accused has no objection in case the amount deposited before the court below is released in favour of the complainant.

Mr. Sumeet Raj Sharma, learned counsel representing the complainant, on the instructions having been imparted to him, by his client, who is present in the Court, stated that in case the amount deposited by the accused before the court below is released in his favour, he has no objection in getting the matter compounded in terms of the judgment (supra). However, Mr. Sharma stated that in case accused fails to make balance payment within stipulated time, liberty be reserved to the complainant to initiate appropriate proceedings against the accused in accordance with law.

In view of the aforesaid submissions having been made by the learned counsel representing the parties as well as receipts produced in the Court, this Court deemed it fit to ascertain the correctness and genuineness of the aforesaid averments by recording statement of accused on oath (Ext. P1). Accused stated that he has deposited Rs.91,668/- in the Court below and remaining amount of Rs.33,332/- shall be deposited by him within one month from today, in the Registry of this Court.

Consequently, in view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court (supra), judgments of conviction passed by learned courts below are set-aside and the petitioner-accused is acquitted of the charges framed against him. Accused shall deposit the balance amount of Rs.33,332/- in the Registry of this Court, within one month from today, in case, accused fails to deposit balance amount, as undertaken by him, complainant is at liberty to initiate appropriate proceedings in the Court of law for non-compliance of this judgment. Amount, if any, lying deposited with the trial Court, may be released in favour of the complainant, on making appropriate application for the purpose.

The petitions are disposed of along with pending applications, if any. Bail bonds, if any furnished by the petitioner-accused, are discharged.