IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. R No. 7 of 2011 Decided on: May 16, 2011. Sudershan Bhalla …….Petitioner. Versus Fateh Chand. …….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice D.D Sud, Judge. Whether approved for reporting? No. For the petitioners: Mr. Ajay Mohan Goel, Advocate. For the respondents: Mr. Lalit Kumar Sharma, Advocate. ---------------------------------------------------------------- Justice D.D Sud, Judge.: Petitioner who has been convicted for offence under Section 138 of Negotiable Instruments Act challenges the judgment of two Courts below on the ground of perversity of findings on the evidence on record. 2. Respondent was complainant before the learned trial Court, who filed a complaint on the allegations that he was an orchardist and in the year 2005 accused approached him and asked him for supply apple packing boxes. He was asked for advance payment and accordingly a sum of Rs. 2,31,000/- was paid to the accused. The apple boxes/packing material was not supplied. A demand for return of money was made, but it was only on 30-2-2007 that cheque bearing No. 258549 payable at SBI, Patiala for Rs. 2,31,000/- was handed over to the complainant, which on presentation was dishonored. This cheque was presented by the complainant to his Bankers i.e. UCO ______________ Whether reporters of the Local papers are allowed to see the judgement? yes Bank, Manali Branch. The memorandum issued by the said Bank is CW-1/A stating therein about the dishonor of the cheque and memo Ex. CW-1/B returning the cheque. Notice Ex. CW-3/B sent by registered post CW-3/D and one elevelope containing notice CW-1/F have also been proved on record along with evidence that this notice was sent at the correct address of the respondent, but he was not found at this address. On the evidence on record, the learned trial Court concluded that cheque Ex. CW-1/A has been issued for valuable consideration and that it was dishonoured without sufficient cause. The statement made on behalf of petitioner herein that this cheque was never handed over to the respondent and that notice was not validly served, has been disbelieved by the Courts below. The judgment has been affirmed by the learned Sessions Judge, Kullu. 3. I have heard learned counsel for the petitioner as also learned counsel for the respondent and gone through the record of the case. 4. I have given my anxious thought to the submissions made on behalf of petitioner that the notice was not received by him. This point need not detain this Court any further, as has been held by C.C Alavi Haji Vs. Palapetty Muhammed and Another, (2007)6 SCC 555 once a notice has been addressed and dispatched on the correct address of the drawer there is presumption of service. 5. On the second aspect that the cheque was never issued to the respondent herein, I do not find that it is viable in view of the fact that no criminal/civil proceedings have been initiated against the complainant which would have been the natural consequences in case cheque was forged/fabricated/stolen. For this purpose, the apprpriate time to make such a protest was at the time when the notice had been received. 6. On the aspect of sentencing, learned counsel for the petitioner places reliance on the judgment of Supreme Court in Damodar R Prabhu Vs. Sayed Babalal H, (2010) 5, SCC 663. The Court has laid down the following guidelines. “18. it is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding , albeit during the later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. Furthermore, the written submission filed on behalf of the learned Attorney General have stressed on the fact that unlike Section 320 Cr. P.C Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the Court. 19. As mentioned earlier, the learned Attorney General’s submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of option for it as soon as the Magistrates take cognizance of the complaints. One explanation for such behaviors could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remain. While such behaviors may be viewed as rational from the view point of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the Courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation. It is generally indicative of some merit in the complainant’s case. In such cases it would be desirable if parties choose compounding during earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds, then the matter can be litigated through he specified forums.” (pp.670-671). 7. On submission of the learned counsel that the trial Court has imposed costs beyond its jurisdiction and cannot which can be said to be compensatory, even, adopting an approach where the sentence for imprisonment is set aside, the Court could have imposed some reasonable compensation. The learned Trial Court awarded compensation to the extent of Rs. 4,00,000/- and sentenced the petitioner for one year imprisonment. 7. Since, the cheque was issued in the year 2007, I deem it fit proper that in case a sum of Rs. 3,00,000/- in all is awarded to the complainant, which shall include not only amount representing on the cheque but interest for the last 4 years as also costs incurred by the complainant in pursuing the case,in three Courts will serve the ends of justice. It is directed accordingly. It is further made clear that this amount shall be deposited before the learned trial Court on or before 13th September, 2011. Learned counsel for petitioner submits that a sum of Rs. 1,15,000/- has already been deposited before learned Judicial Magistrate, Ist Class, Manali on 26-8-2009 and 3-3-2011 . A direction is issued to the Trial Court that amount of Rs. 1,15,000/- be released to the complainant forthwith and remaining amount of Rs. 1,85,000/- shall also be released to the complainant as soon as it is so deposited. In case of non-deposit of the remaining payment, it is directed that sentence of imprisonment as imposed shall revive and the petitioner also liable to pay compensation to the extent of Rs. 2,50,000/-. Revision disposed of. Copy dasti. May 16, 2011 (D.D Sud), Judge. (priti)