Deepan Kumar Hastir and another vs Sampat Kumar

Since parties and disputes involved in both the petitions are same and cheques were issued by the petitioners-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. 5 of 2017 has been filed against judgment dated 2.11.2016 passed by the learned Additional Sessions Judge-I, Shimla in Criminal Appeal No. 50-S/10 of 2014, affirming judgment/order dated 14.7.2014/22.7.2014 passed by Additional Chief Judicial Magistrate, Court No. II, Shimla, in Criminal Case No. 460-3 of 2013/10, whereby accused have been convicted and sentenced to undergo simple imprisonment, for six months and to pay a fine of Rs.28,000/- under Section 138 of Negotiable Instruments Act (hereinafter, ''Act'').

Similarly, Criminal Revision No. 6 of 2017 has been filed against judgment dated 2.11.2016 passed by the learned Additional Sessions Judge-I, Shimla in Criminal Appeal No. 49-S/10 of 2014, affirming judgment/order dated 14.7.2014/22.7.2014 passed by Additional Chief Judicial Magistrate, Court No. II, Shimla, in Criminal Case No. 456-3 of 2013/10, whereby accused have been convicted and sentenced to undergo simple imprisonment, for six months and to pay a fine of Rs.28,000/- under Section 138 of the Act.

Briefly stated the facts as emerge from the record are that the respondent-complainant (complainant) preferred two complaints under Section 138 of the Act, in the court of learned Additional Chief Judicial Magistrate, Court No. II, Shimla, HP, which came to be registered as Criminal Case No. 460-3 of 2013/10 and 456-3 of 2013/10. As per the complaints, vide agreement dated 18.1.2008, entered into between parties, accused purchased fittings and fixtures amounting to Rs.1.00 Lakh from the complainant and in order to discharge aforesaid liability issued cheques bearing No. 272691 dated 15.7.2009 amounting to Rs.15,000/-, No. 272692 dated 15.10.2009 amounting to Rs.15,000/-, No. 272693 dated 15.2.2010, amounting to Rs.20,000/-, No. 272694 dated 15.6.2010 (sic. 15.6.2000) amounting to Rs.25,000/- and No. 272695 dated 15.10.2010 amounting to Rs.25,000/-. Cheques bearing Nos. 272694 and 272695, dated 15.6.2010 and 15.10.2010, respectively, both amounting to Rs.25,000/-, each, were dishonoured on presentation, on account of ''insufficient funds'' in the bank account maintained by the accused. In this background, complainant filed two separate complaints qua both the cheques under Section 138 of the Act, before the learned trial Court, which, after being satisfied that prima facie case exists against the accused, put the accused to notice of accusation, to which they pleaded not guilty and claimed trial. However, fact remains that the trial Court vide judgments/orders dated 14.7.2014/22.7.2014, held both the accused guilty of having committed offence punishable under Section 138 of the Act and convicted and sentenced them as per description given above.

Accused being aggrieved, filed two separate criminal appeals before the learned Additional Sessions Judge-I, Shimla, i.e. Cr. Appeal No. 50-S/10 of 2013/10 and Cr. Appeal No. 49-S/10 of 2013/10, who dismissed both the appeals and upheld the judgments/orders passed by the learned trial Court. Hence, present petitions by the accused, seeking their acquittal, after setting aside the judgments of conviction recorded by learned Courts below.

On 11.4.2017, learned counsel representing the accused made statement before this Court that the accused are ready and willing to make the entire payment in terms of judgments/ orders of the learned trial Court, as such, matter can be ordered to be compounded in terms of judgment passed by the Hon''ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H. (2010) 5 SCC 663.

Accordingly, this court, directed both the parties to remain present in the Court on 16.5.2017. Today, during the proceedings of the case before this Court, Mr. V.D. Khidtta, learned counsel representing the accused informed that an amount of Rs.28,000/- stands deposited with the learned trial Court, whereas, accused are ready and willing to make balance payment of Rs.28,000/- in the Court itself.

Mr. Prashant Pandey, learned counsel representing the complainant, on the instructions imparted to him by his client, who is present in the Court, stated that though complainant has no objection in compounding the offence but, while doing so, adequate compensation be awarded to him as he was subjected to undue hardships by the accused. Mr. Pandey further contended that more than seven years have passed but till date no steps have been made by the accused to make payment qua the cheques issued by them, rather complainant was compelled to initiate legal proceedings in the competent court of law, for realization of his own money.

After having heard the learned counsel representing the parties, this Court, solely with a view to ascertain the genuineness and correctness of the statements made by the learned counsel representing the parties, also inquired from the complainant, who is present in the Court, who stated that he has no objection in getting matter compounded subject to payment of reasonable compensation by this Court.

At this stage, Mr. V.D. Khidtta, learned counsel representing the accused stated that from day one, accused have been offering money to the complainant but he refused to take the same, as such, there is no occasion for this Court to award compensation as prayed for by the complainant.

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 petitioners-accused are acquitted of the charges framed against them. Accused have paid Rs.28,000/-, in cash, to the complainant in the Court itself and Rs.28,000/- have been deposited with the learned trial Court (against both the cheques). However, accused are also directed to pay an amount of Rs.10,000/-, as compensation to the complainant, against both the cheques, to be paid within four weeks from today, failing which, accused shall render themselves liable for penal consequences and also for contempt proceedings. The amount lying deposited with the learned trial Court, shall be released to the complainant, on making an appropriate application for the purpose.

The petitions are disposed of along with pending applications, if any. Bail bonds, if any furnished by the petitionersaccused, in both the cases, are discharged. Copy dasti.