CR.R/406/2015 of HARI SINGH Vs LIC HOUSING FINANCE LIMITED on 28 December 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No.406 of 2015

Date of Decision: 28[th] December,2017

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Hari Singh ….. Petitioner.

Coram:

The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?[1]For the Petitioner : Mr. Jeevesh Sharma, Advocate.

For the Respondent : Nemo.

Sandeep Sharma, Judge (oral)

Despite service, none has come present on behalf of the sole respondent, namely LIC Housing Finance Limited and as such, it is proceeded against ex-parte. 2.Mr. Jeevesh Sharma, learned counsel representing the petitioner, while inviting attention of this Court to the communication, dated 19.03.2014 and receipt, dated 7.03.2014, issued by the respondent namely LIC Housing Finance Limited, contended that an amount of `5.50,000/- stands deposited with the respondent in terms of the judgment passed by the learned trial Court and as such, petitioner can be acquitted of the charges framed against him after setting aside the judgment of conviction recorded by the learned trial Court.

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3. Facts, as emerge from the record are that the respondent namely LIC Housing Finance Limited (hereinafter referred to as the ‘complainant’) filed a complaint under Section 138 of the Negotiable Instruments Act, ( hereinafter referred to as the ‘Act’) in the learned trial Court, alleging therein that the petitioner ( hereinafter referred to as the ‘Accused’) had availed Housing Loan Facilities of `3,60,000/- and he had furnished a security for the repayment of the loan amount vide loan account No.18003757. The loan amount was to be repaid in 15 installments and accused had agreed to pay interest at the rate of 9.75% per annum as per the terms and conditions of the agreement. With a view to discharge his liability, accused issued a cheque bearing No.794866, dated 19.02.2010, amounting to `4,68,377/- drawn on UCO Bank, Darlaghat in lieu of the total outstanding loan amount. However, fact remains that aforesaid cheque was dishonoured on its presentation and as such, complainant got issued legal notice calling upon accused to make payment good within stipulated time. Since, the accused failed to make the payment within stipulated time, complainant was compelled to initiate proceedings under Section 138 of the Act, in the competent court of law.

4. Learned trial Court on the basis of the evidence adduced on record by the complainant, held accused guilty of having committed an offence punishable under Section 138 of the Act, vide judgment dated 29.11.2011/12.12.2011 and accordingly convicted and sentenced him to undergo simple imprisonment for one year and to pay compensation of `5,00,000/- to the complainant.

5. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the learned trial Court, petitioner-accused filed an appeal under Section 374 of the Code of Criminal Procedure, in the court of learned Sessions Judge, Shimla, which came to be registered as Criminal Appeal No.20-S/10 of 2012. However, fact remains that same was dismissed, as a consequences of which, judgment of conviction recorded by the learned trial Court came to be upheld. In the aforesaid background, petitioner-accused approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgment of conviction recorded by the learned courts below.

6. Despite notice, respondent-complainant namely LIC Housing Finance Limited, has not chosen to put in appearance before this Court and as such, this Court has no option but to decide the present case on the basis of the material made available on record by the petitioner-accused. 7.Perusal of communication dated 19.03.2014 as well as receipt dated 7.03.2014 placed on record, suggest that the petitioner-accused has already deposited an amount of `5,50,000/- against the loan account No. 18003757 with the respondent-complainant, Shimla on 7.03.2014.

8. Learned counsel representing the petitioner-accused also produced original receipt dated 7.03.2014, to demonstrate that entire loan amount stands repaid and as of today no claim, right or interest survives as far as respondent-complainant namely LIC Housing Finance Limited is concerned. Original communication dated 19.03.2014 as well as receipt dated 7.03.2014 perused and returned.

9. After having carefully perused the aforesaid communication as well as receipts placed on record, this Court is convinced and satisfied that the entire amount in terms of the judgment passed by the learned trial Court stands paid by the petitioner-accused and as such, his request for compounding the offence allegedly committed by him under Section 138 of the Act can be considered in terms of the law laid down by the Hon’ble Apex Court in Damodar S. Prabhu v. Sayed Babalal H.(2015)5 SCC 663. It clearly emerge from the record that the petitioner- accused was advanced loan to the tune of `3,60,000/- from the respondent-complainant and he had furnished security for the repayment of the loan amount vide loan account No.18003757. Communication dated 19.03.2014 as well as receipt dated 7.03.2014, issued by the respondent-complainant, clearly suggest that an amount of `5,50,000/- was paid by the petitioner-accused against the loan A/c No.18003757.

10. Consequently, in view of the submissions having been made by learned counsel for the petitioner-accused, this Court deems it fit to accept the prayer having been made on behalf of the petitioner-accused for compounding the instant matter in terms of the judgment passed by the Hon’ble Apex Court in Damodar S. Prabhu case supra.

11. Accordingly, in view of the aforesaid discussion made hereinabove, instant matter is ordered to be compounded and judgments passed by learned Courts below are quashed and set-aside. The petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. The bail bonds of the accused are ordered to be discharged.

The petition is disposed of along with pending applications, if any.

28[th] December,2017 (shankar)

(Sandeep Sharma) Judge