Kalu Ram vs Laxmi Narayan Bhati and Others

Banwari Lal Sharma, J.

This revision petition was preferred by the petitioner against the impugned judgment dated 16.05.2011, passed by the learned Sessions Jodhpur Metropolitan in Criminal Appeal No. 8/2011 Laxmi Narayan Bhati Vs. Kalu Ram, whereby, the learned appellate court allowed the appeal of appellant-accused and quashed and set aside the judgment of conviction and order of sentence dated 09.12.2010 and restored the order dated 19.10.2010, passed by the learned Special Judicial Magistrate (NI Act Cases) Court No. 2, Jodhpur passed in Criminal Case No. 1166/2009 Kalu Ram Vs. Laxmi Narayan Bhati @ Laxman Bhati whereby the learned Special Judicial Magistrate convicted the accused for offence under Section 138 NI Act and sentenced for two years'' simple imprisonment and ordered to pay compensation to complainant in the tune of Rs. 71,000/- under Section 357 Cr.P.C., in default of payment of compensation to further undergo 6 months'' simple imprisonment. It was also ordered that after depositing the compensation amount, the same be paid to the respondent.

The brief facts of the case are that petitioner-complainant preferred the complaint on 17.08.2001 before the learned Additional Chief Judicial Magistrate No. 3, Jodhpur against the respondent-accused for offence under Section 138 NI Act, 1881 and Section 420 and 406 of IPC stating therein that petitioner-complainant is doing handicraft business. In the month of November, 2000 accused came to him and introduced him that he is dealing in handicraft items and received handicraft goods vide challan No. 245 and outward Bill No. 66 dated 05.12.2000 and a cheque of Rs. 21000/- dated 20.10.2000 bearing No. 212065 drawn on Syndicate Bank, Sojati Gate Branch, Jodhpur was given against the payment of goods. Thereafter, accused again purchased handicraft items for Rs. 66,800/- against which Rs. 49,632/- were paid in case and remaining amount of Rs. 17,000/- was paid through cheque bearing No. 212070 dated 30.12.2000 drawn on Syndicate Bank, Sojati Gate Branch, Jodhpur and assured that both the cheques shall be encashed.

The complainant submitted the cheque before the Bank but the same were returned unpaid with returning memo mentioning "insufficient funds" on 20.06.2001. Thereafter on 04.07.2001 a notice was given to accused through registered AD Post and UPC. Even after notice, accused failed to make payment of the cheque amount, therefore, the complaint was filed against the accused.

Learned trial court vide order dated 18.07.2003 took cognizance for the offence under Section 138 Negotiable Instrument Act and summoned the accused.

Thereafter, the matter was transferred to learned Additional chief Judicial Magistrate (CBI) Cases, Jodhpur wherein on 06.02.2006 accused put his appearance and was released on bail vide order dated 21.02.2006 the substance of charge was explained to accused for which he denied and claimed for trial.

To substantiate the charge, the complainant examined himself as PW1 and proved certain documents.

Thereafter, accused was examined under Section 313 Cr.P.C. wherein he submitted that he handed over blank cheque to complainant and pleaded that he is innocent and has been implicated falsely in this case. Due to friendship, he gave blank cheques to complainant which were misused by him. During pendency of complaint on 22.02.2010, respondent accused preferred an application under Section 265-B Cr.P.C. for which reply was filed by the complainant on 19.10.2010. In the application, the accused submitted that he is ready to pay the cheque amount + 10 % of cheque amount to complainant for which complainant also gave his consent on 19.10.2010. Thereafter, the matter was posted for 26.11.2010 for making payment and argument on application under Section 265 Cr.P.C. On 26.11.2010, accused failed to make the payment of cheque amount and 10 % of the cheque amount, therefore, the learned trial court dismissed the application under Section 265-A Cr.P.C. as becoming infructuous and the matter was posted for final arguments.

Thereafter after hearing, vide judgment dated 09.12.2010 convicted the accused for offence under Section 138 NI Act and sentenced as aforesaid. Against which respondent-accused preferred appeal before the learned Sessions Judge, Jodhpur who after hearing the parties partly allowed the appeal and quashed and set aside the judgment dated 09.12.2010 passed by the learned trial court and restored the order dated 19.10.2010 against which this revision petition has been preferred by the complainant.

Learned counsel for the complainant submits that application under Section 265 Cr.P.C. was preferred by the accused on 22.02.2010 and reply to the said application was filed by the complainant on 19.10.2010. Thereafter complainant gave his consent on the same day. Learned trial court without passing any order on 19.10.2010 on the application, posted the matter for 26.11.2010 for payment of cheque amount and 10 % of the cheque amount and arguments.

Since, accused failed to appear before the court and make payment, therefore, the application was dismissed by the learned trial court. Without considering this order dated 26.11.2010, learned appellate court wrongly allowed the appeal considering the fact that application under Section 265-A Cr.P.C. was decided by the learned trial court on 19.10.2010 while as the matter of fact, no order was passed on that date by the learned trial court, therefore, finding of the learned trial court, in this regard, is perverse, therefore, appeal may be allowed.

No one has appeared on behalf of the respondent-accused.

I have considered the submissions made by learned counsel for the petitioner complainant.

Chapter 21-A of Cr.P.C. containing Section 265-A to Section 265-L was inserted by the Act of 2006 with effect from 06.07.2006 which reads as under:

Section 265A- Application of the Chapter. - (1) This Chapter shall apply in respect of an accused against whom-

(a) the report has been forwarded by the officer in charge of the police station under section 173 alleging therein that an offence appears to have been committed by him other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force; or

(b) a Magistrate has taken cognizance of an offence on complaint, other than an offence for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years, has been provided under the law for the time being in force, and after examining complainant and witnesses under section 200, issued the process under section 204,

but does not apply where such offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.

(2) For the purposes of Sub-Section (1), the Central Government shall, by notification, determine the offences under the law for the time being in force which shall be the offences affecting the socio-economic condition of the country.

Section 265B- Application for plea bargaining.-

(1) A person accused of an offence may file an application for plea bargaining in the Court in which such offence is pending for trial.

(2) The application under Sub-Section (1) shall contain a brief description of the case relating to which the application is filed including the offence to which the case relates and shall be accompanied by an affidavit sworn by the accused stating therein that he has voluntarily preferred, after understanding the nature and extent of punishment provided under the law for the offence, the plea bargaining in his case and that he has not previously been convicted by a Court in a case in which he had been charged with the same offence.

(3) After receiving the application under Sub-Section (1), the Court shall issue notice to the Public Prosecutor or the complainant of the case, as the case may be, and to the accused to appear on the date fixed for the case.

(4) When the Public Prosecutor or the complainant of the case, as the case may be, and the accused appear on the date fixed under Sub-Section (3), the Court shall examine the accused in camera, where the other party in the case shall not be present, to satisfy itself that the accused has filed the application voluntarily and where-

(a) the Court is satisfied that the application has been filed by the accused voluntarily, it shall provide time to the Public Prosecutor or the complainant of the case, as the case may be, and the accused to work out a mutually satisfactory disposition of the case which may include giving to the victim by the accused the compensation and other expenses during the case and thereafter fix the date for further hearing of the case;

(b) the Court finds that the application has been filed involuntarily by the accused or he has previously been convicted by a Court in a case in which he had been charged with the same offence, it shall proceed further in accordance with the provisions of this Code from the stage such application has been filed under Sub-Section (1).

Section 265C- Guidelines for mutually satisfactory disposition.-In working out a mutually satisfactory disposition under clause (a) of Sub-Section (4) of section 265B, the Court shall follow the following procedure, namely:-

(a) in a case instituted on a police report, the Court shall issue notice to the Public Prosecutor, the police officer who has investigated the case, the accused and the victim of the case to participate in the meeting to work out a satisfactory disposition of the case:

Provided that throughout such process of working out a satisfactory disposition of the case, it shall be the duty of the Court to ensure that the entire process is completed voluntarily by the parties participating in the meeting:

Provided further that the accused may, if he so desires, participate in such meeting with his pleader, if any, engaged in the case;

(b) in a case instituted otherwise than on police report, the Court shall issue notice to the accused and the victim of the case to participate in a meeting to work out a satisfactory disposition of the case:

Provided that it shall be the duty of the Court to ensure, throughout such process of working out a satisfactory disposition of the case, that it is completed voluntarily by the parties participating in the meeting:

Provided further that if the victim of the case or the accused, as the case may be, so desires, he may participate in such meeting with his pleader engaged in the case.

Section 265D- Report of the mutually satisfactory disposition to be submitted before the Court.-Where in a meeting under section 265C, a satisfactory disposition of the case has been worked out, the Court shall prepare a report of such disposition which shall be signed by the presiding officer of the Court and all other persons who participated in the meeting and if no such disposition has been worked out, the Court shall record such observation and proceed further in accordance with the provisions of this Code from the stage the application under Sub-Section (1) of section 265B has been filed in such case.

Section 265E- Disposal of the case.-

Where a satisfactory disposition of the case has been worked out under section 265D, the Court shall dispose of the case in the following manner, namely:-

(a) the Court shall award the compensation to the victim in accordance with the disposition under section 265D and hear the parties on the quantum of the punishment, releasing of the accused on probation of good conduct or after admonition under section 360 or for dealing with the accused under the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the time being in force and follow the procedure specified in the succeeding clauses for imposing the punishment on the accused;

(b) after hearing the parties under clause a), if the Court is of the view that section 360 or the provisions of the Probation of Offenders Act, 1958(20 of 1958) or any other law for the time being in force are attracted in the case of the accused, it may release the accused on probation or provide the benefit of any such law, as the case may be;

(c) after hearing the parties under clause b), if the Court finds that minimum punishment has been provided under the law for the offence committed by the accused, it may sentence the accused to half of such minimum punishment;

(d) in case after hearing the parties under clause b), the Court finds that the offence committed by the accused is not covered under clause b) or clause c), then, it may sentence the accused to one-fourth of the punishment provided or extendable, as the case may be, for such offence.

Section 265F- Judgment of the Court.- The Court shall deliver its judgment in terms of section 265E in the open Court and the same shall be signed by the presiding officer of the Court.

Section 265G- Finality of the judgment.- The judgment delivered by the Court under section 265G shall be final and no appeal (except the special leave petition under article 136 and writ petition under articles 226 and 227 of the Constitution) shall lie in any Court against such judgment.

Section 265H- Power of the Court in plea bargaining.- A Court shall have, for the purposes of discharging its functions under this Chapter, all the powers vested in respect of bail, trial of offences and other matters relating to the disposal of a cast in such Court under this Code.

Section 265I- Period of detention undergone by the accused to be set off against the sentence of imprisonment.- The provisions of section 428 shall apply, for setting off the period of detention undergone by the accused against the sentence of imprisonment imposed under this Chapter, in the same manner as they apply in respect of the imprisonment under other provisions of this Code.

Section 265J- Savings. - The provisions of this Chapter shall have effect notwithstanding anything inconsistent therewith contained in any other provisions of this Code and nothing in such other provisions shall be construed to constrain the meaning of any provision of this Chapter.

Explanation - For the purposes of this Chapter, the expression "Public Prosecutor" has the meaning assigned to it under clause (u) of section 2 and includes an Assistant Public Prosecutor appointed under section 25.

Section 265K- Statements of accused not to be used.- Notwithstanding anything contained in any law for the time being in force, the statements or facts stated by an accused in an application for plea bargaining filed under section 265B shall not be used for any other purpose except for the purpose of this Chapter.

Section 265L- Non-application of the Chapter.-Nothing in this Chapter shall apply to any juvenile or child as defined in clause (k) of section 2 of the Juvenile Justice (Care and Protection of Children) Act, 2000 (56 of 2000)."

From perusal of above provisions, it is clear that after satisfactory disposition of the parties as per Section 265-D, the court shall prepare a report of such disposition which shall be signed by the Presiding Officer of the court and all other persons who participated in the meeting and if no such disposition has been worked out, the court shall record such observation and proceed further in accordance with the provisions of this Code from the stage of application under sub-section (1) of Section 265B and after that if the court is satisfied by the disposition of the case has been worked out under Section 265-D, the court shall dispose of the case in such manner and proceed under Section 265-E.

From the perusal of available record, it reveals that application was filed without affidavit and on 19.10.2010 parties put their consent before the court but the court has not recorded disposition in view of Section 265-C and D. Rather fixed the date for 26.11.2010 and on that dated respondent-accused failed to appear and make payment, therefore, the application was dismissed as rendered infructuous and the matter was fixed for final arguments.

From the order dated 26.11.2010, it is clear that matter was not disposed of as per Chapter 21-A. Thereafter, after hearing on merits, learned trial court decided the matter.

Since, the matter was not decided by the learned trial court as per provisions of Chapter 21-A Cr.P.C., still learned appellate court treated it as decided as per provisions of Chapter 21-A Cr.P.C. and allowed the appeal and disposed of appeal restoring the order dated 19.10.2010 which is factually not correct and perverse, therefore, this appeal deserves acceptance which is hereby accepted and the judgment of the learned appellate court dated 16.05.2011 is quashed and set aside and the matter is remanded back to the learned appellate court i.e. Sessions Court, Jodhpur Metropolitan with direction to hear the appeal afresh and decide it in accordance with law.

Parties are directed to appear before the learned appellate court on 27.04.2015. Office is directed to return the record with copy of order to learned appellate court forthwith.