IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA [CASE NUMBER] . Date of Decision : 23rd August, 2019 [ENTITY] Petitioner. Versus [ENTITY] & others Respondent. Coram: The Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? No For the petitioner : Mr. [ENTITY], Advocate. For respondent No.1 : Mr. [ENTITY], Advocate. For respondent No. 2. : Mr. [ENTITY] & Mr. [ENTITY], Additional Advocates General and Mr. [ENTITY], Deputy Advocate General. [ENTITY], Judge (oral)
Challenging the judgment of conviction passed by the Additional Sessions Judge-1, Mandi, H.P. camp at [ENTITY] in [CASE NUMBER] dated 29-11-2017 whereby the first Appellate Court had affirmed the judgment of conviction passed by learned Judicial Magistrate, Ist class, [ENTITY], District- Mandi, HP in [CASE NUMBER] dated 23-06-2017 under [SECTION] of the [ACT] (hereinafter referred to as the [ACT]).
2. The petitioner has come up in this Court for invoking the revisional jurisdiction under [SECTION] read with [SECTION] of the Code .
of Criminal Procedure.
3. The facts of the case apposite to decide the present petition are that the accused had entered into a contract with [ENTITY]-respondent and availed loan amounting to Rs.3,40,000/-. This loan was obtained by the petitioner jointly with his father. However, the accused failed to reimburse the loan amount and consequently issued a cheque amounting to Rs. 2,49,134/- in favour of complainant-bank. On 2nd July, 2015 the said cheque was dishonoured on account of insufficient funds. The complainant issued the requisite notice to make up the deficiency of funds but despite that the petitioner did not make the payment. Accordingly, aforesaid complaint was filed by the [ENTITY]. The Trial Court convicted the accused under [SECTION] of the [ACT] and sentenced him to undergo simple imprisonment for six months and ordered to pay compensation amount of Rs. 3,00,000/- under [SECTION] of [ACT] .
4. The Appellate Court upheld the conviction and now the convict has come up with the present Criminal Revision. On 26 th July, 2019 Sh. [ENTITY], Advocate, appeared for the respondent-bank and on instructions received from his client made a statement that the entire amount pertaining to the cheque in question stands paid and further that respondent-bank has no objection, if the matter is compounded. On the said date, the State who is a formal party also did not object to the matter being compounded.
5. Learned Counsel appearing for the petitioner, submits that since the complainant is an Institution, therefore, due to procedural formalities it is almost impossible to enter into a compromise with bank and since entire compensation has been paid as such matter be compounded. He further stated that loan was obtained by the petitioner jointly with his father and the cheque was issued by the petitioner with a view to save his father from any criminal liability and further more that the petitioner is in a very bad financial condition as such some relaxation be made in compounding fees, as directed by Hon'ble Supreme Court in [PRECEDENT], wherein it has been observed as under:-
"iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused."
6. Therefore, in my considered view, the offence is ordered to be compounded and all proceedings are quashed on the following grounds:-
I. The jurisprudence behind the [ACT] is that the business transactions should be honoured. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are simply to execute the recovery of cheque amount by showing teeth of penal loss.
II. This Court has inherent powers under Section .
482 of the [ACT] which are further supported by [SECTION] of the [ACT] to interfere in this kind of matter where parties have paid the entire money and where the complainant does not object to clear all the proceedings.
7. In view of the entirety of the facts of the case, as well as judicial precedents, a few of which have been mentioned hereinabove, I am of the considered opinion that continuation of these proceedings will not suffice any fruitful purpose whatsoever. Therefore, I am of the considered opinion that in view of the compromise, this is a fit case where the inherent jurisdiction of the High Court under [SECTION] of the [ACT] read [SECTION] of [ACT], should be invoked to compound the offence and consequently to quash the above mentioned FIR and consequent proceedings.
8. In [PRECEDENT], at p 642, Hon'ble Supreme Court observed as follows:
"The finest hour of Justice arise propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion."
9. Consequently, in view of compounding of offence, the judgment dated 29-11-2017, passed in [CASE NUMBER], titled as [ENTITY] Vs. PNB & another, pronounced by learned Additional Sessions Judge-1, Mandi, Distt. Mandi, Himachal Pradesh Camp at [ENTITY], whereby he upheld the judgment passed by Judicial Magistrate 1 st Class, .
[ENTITY], District Mandi, H.P., in [CASE NUMBER], titled as PNB Vs. [ENTITY], convicting and sentencing the petitioner, are set aside and quashed. Consequently, the petitioner is acquitted of the offence under [SECTION] of the Act. The bail bonds are accordingly discharged.
10. This compounding is subject to the convict/accused depositing 15% of the cheque amount, in terms of the judgment passed by a Larger Bench of Hon'ble Supreme Court in Damodar S. Prabhu v.
Sayed Babalal H., (2010) 5 SCC 663, whereby following law for compounding of offences punishable under [ACT] was laid down:
" 21 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 Court 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.
Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority."
11. The Trial Court had awarded compensation amounting to Rs. 3,00,000/- alongwith imprisonment for six months. Learned counsel for the petitioner submits that he has deposited amount of Rs. 3,40,000/- or in any other case more than Rs. 3,00,000/-. He further submits that petitioner is in a very bad financial condition and the loan was jointly received by him alongwith his father, as such some relaxation be made in compounding fees. There is merit in this submission, therefore, out of the amount so .
deposited, a sum of Rs. 3,00,000/- to be paid to the respondent-bank and all the balance amount including the interest on FD is directed to be paid to the HP Legal Services Authority by paying cheque or direct electronic transfer in the account. Such deposit shall be made by the Court before whom the compensation amount was deposited. In any case, if the total amount exceeds to Rs. 3,45,000/- then the balance be refunded to the petitioner. The compounding fee has to be 15% of the compensation in view of the judgment [PRECEDENT] as cited supra. The compensation awarded is Rs.3,00,000/-
therefore, 15% of Rs. 3,00,000/- comes to Rs. 45,000/-. In view of the above, this Criminal Revision is allowed in aforesaid terms. The certified copy of this petition be sent to the Trial Court. Record of the Trial Court, if called for, be also returned.
12. The learned trial Court shall release all the amount in the manner discussed here-in-above on the production of certified copy of this judgment by respondent-bank.
Accordingly, petition stands disposed of. All pending application(s), if any, also stand disposed of.
([ENTITY]), Judge.
23rd August, 2019 (NK)