CR.R/122/2018 of PREM SINGH Vs DHARAM SINGH on 31 December 2018

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. Revision No. 122 of 2018Date of decision: 31.12.2018.

Prem Singh

..…..Petitioner.

Dharam Singh

Versus

……Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge.Whether approved for reporting?[1 No.]For the Petitioner :Mr. D. S. Kainthla, Advocate. For the Respondent : Mr. Maan Singh, Advocate..

Mr. D. S. Kainthla, Advocate.

Mr. Maan Singh, Advocate..

Tarlok Singh Chauhan, Judge (Oral).

Looking to the nature of order, I propose to pass, it isnot at all necessary to delve into the facts in detail. Suffice it tostate that the complainant/respondent instituted a complaintunder Section 138 of the Negotiable Instruments Act (for short‘Act’) against the petitioner on the allegations that a cheque ofRs. 2,20,000/- handed over by the petitioner to respondent inorder to discharge his liability had been dishonoured. Thecomplaint was decided in favour of the respondent by thelearned trial Magistrate and the petitioner was sentenced toundergo simple imprisonment for eight months and also awarded a lumpsum compensation of Rs. 2,70,000/- to thecomplainant/respondent.

2. Aggrieved by the judgment of conviction andsentence passed by the learned trial Magistrate on 08.08.2016,though the petitioner preferred an appeal before the learnedSessions Judge, Kullu, however, the same came to be dismissedvide judgment dated 23.01.2018, constraining the petitioner tofile the instant revision petition.

3. Today, when the case was taken up, learned counselfor the petitioner has paid a sum of Rs. 1,10,000/- to the learnedcounsel for the respondent in the open Court and requested thatthe case be compounded.

4. However, the moot question is whether acompromise, at this stage, can be permitted to be effectedbetween the parties where the petitioner has been chargedunder Section 138 of the Act. This court is not powerless in suchsituation and adequate powers have been conferred upon it notonly under sections 397 read with Section 401 or Section 482Cr.P.C. (hereinafter referred to as the Code) but also underSection 147 of the Act for accepting the settlement entered intobetween the parties and to quash the proceedings arising out ofthe proceedings, which have consequently culminated into asettlement. This power has been conferred to subserve the ends of justice or/and to prevent abuse of the process of any Court.Though, such power is required to be exercised withcircumspection and in cases which do not involve heinous andserious offence of mental depravity or offences like murder,rape, dacoity etc.

5. This question otherwise need not detain this Courtany longer in view of the three Judges Bench decision of theHon’ble Supreme Court in Parbatbhai Aahir @ Parbatbhaiand others versus State of Gujarat and another, Criminal Appeal No. 1723 of 2017, decided on 4[th] October, 2017,wherein after taking into consideration the entire law on thesubject, the Hon’ble Supreme Court has laid down the followingbroad principles for exercise of powers under Section 482 of theCode which read thus:- “(i) Section 482 preserves the inherent powers of the High Courtto prevent an abuse of the process of any court or to secure theends of justice. The provision does not confer new powers. It onlyrecognises and preserves powers which inhere in the High Court;

(ii) The invocation of the jurisdiction of the High Court to quash aFirst Information Report or a criminal proceeding on the groundthat a settlement has been arrived at between the offender andthe victim is not the same as the invocation of jurisdiction for thepurpose of compounding an offence. While compounding anoffence, the power of the court is governed by the provisions ofSection 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is attracted even if the offence is non-compoundable.

(iii) In forming an opinion whether a criminal proceeding orcomplaint should be quashed in exercise of its jurisdiction underSection 482, the High Court must evaluate whether the ends ofjustice would justify the exercise of the inherent power;

(iv) While the inherent power of the High Court has a wide ambitand plenitude it has to be exercised; (i) to secure the ends ofjustice or (ii) to prevent an abuse of the process of any court;

(v) The decision as to whether a complaint or First InformationReport should be quashed on the ground that the offender andvictim have settled the dispute, revolves ultimately on the factsand circumstances of each case and no exhaustive elaboration ofprinciples can be formulated;

(vi) In the exercise of the power under Section 482 and whiledealing with a plea that the dispute has been settled, the HighCourt must have due regard to the nature and gravity of theoffence. Heinous and serious offences involving mental depravityor offences such as murder, rape and dacoity cannotappropriately be quashed though the victim or the family of thevictim have settled the dispute. Such offences are, truly speaking,not private in nature but have a serious impact upon society. Thedecision to continue with the trial in such cases is founded on theoverriding element of public interest in punishing persons forserious offences;

(vii) As distinguished from serious offences, there may be criminalcases which have an overwhelming or predominant element of acivil dispute. They stand on a distinct footing in so far as theexercise of the inherent power to quash is concerned;

(viii) Criminal cases involving offences which arise fromcommercial, financial, mercantile, partnership or similartransactions with an essentially civil flavour may in appropriatesituations fall for quashing where parties have settled the dispute;

(ix) In such a case, the High Court may quash the criminalproceeding if in view of the compromise between the disputants,the possibility of a conviction is remote and the continuation of acriminal proceeding would cause oppression and prejudice; and

(x) There is yet an exception to the principle set out inpropositions (viii) and (ix) above. Economic offences involving thefinancial and economic well-being of the state have implicationswhich lie beyond the domain of a mere dispute between privatedisputants. The High Court would be justified in declining toquash where the offender is involved in an activity akin to afinancial or economic fraud or misdemeanour. The consequencesof the act complained of upon the financial or economic systemwill weigh in the balance.”

6. Apart from the above, it shall be apposite to makenote of another recent judgment of the Hon’ble Supreme Court in Meters and Instruments Private Limited and anotherversus Kanchan Mehta (2018) 1 SCC 560 wherein aftertaking into consideration the object of introducing Section 138and other provisions of Chapter XVII in the Act in the year 1988,it was observed as under:- “18. From the above discussion following aspects emerge:

18.1. Offence under Section 138of the Act is primarily a civilwrong. Burden of proof is on accused in view presumption under

Section 139but the standard of such proof is “preponderance ofprobabilities”. The same has to be normally tried summarily as perprovisions of summary trial under the Cr.P.C.but with suchvariation as may be appropriate to proceedings under ChapterXVII of the Act. Thus read, principle of Section 258Cr.P.C. willapply and the Court can close the proceedings and discharge theaccused on satisfaction that the cheque amount with assessedcosts and interest is paid and if there is no reason to proceed withthe punitive aspect.

18.2. The object of the provision being primarily compensatory,punitive element being mainly with the object of enforcing thecompensatory element, compounding at the initial stage has to beencouraged but is not debarred at later stage subject toappropriate compensation as may be found acceptable to theparties or the Court.

18.3. Though compounding requires consent of both parties, evenin absence of such consent, the Court, in the interests of justice,on being satisfied that the complainant has been dulycompensated, can in its discretion close the proceedings anddischarge the accused.

18.4. Procedure for trial of cases under Chapter XVII of the Acthas normally to be summary. The discretion of the Magistrateunder second proviso to Section 143, to hold that it wasundesirable to try the case summarily as sentence of more thanone year may have to be passed, is to be exercised afterconsidering the further fact that apart from the sentence ofimprisonment, the Court has jurisdiction under Section 357(3)Cr.P.C. to award suitable compensation with default sentenceunderSection 64IPC and with further powers of recovery underSection 431Cr.P.C. With this approach, prison sentence of morethan one year may not be required in all cases.

18.5. Since evidence of the complaint can be given on affidavit,subject to the Court summoning the person giving affidavit andexamining him and the bank’s slip being prima facie evidence ofthe dishonor of cheque, it is unnecessary for the Magistrate torecord any further preliminary evidence. Such affidavit evidencecan be read as evidence at all stages of trial or other proceedings.The manner of examination of the person giving affidavit can beas per Section 264Cr.P.C. The scheme is to follow summaryprocedure except where exercise of power under second provisoto Section 143becomes necessary, where sentence of one yearmay have to be awarded and compensation under Section 357(3)is considered inadequate, having regard to the amount of thecheque, the financial capacity and the conduct of the accused orany other circumstances.”

7. The issue is further no longer res integra in view ofthe very recent judgment of the Hon’ble Supreme Court inBhangu Trading Co. and another versus Surjit Singh(dead) through LRs, Criminal Appeal Nos. 808 and 809 of2018 decided on 02.07.2018and in terms of the subsequentjudgment in N.P. Murugesan versus C. Krishnamurthy,Criminal Appeal No.818 of 2018, decided on 04.07.2018,wherein it was observed as under:- “Leave granted.

2. The appellant is before this Court aggrieved by the convictionand sentence under Section 138 of the Negotiable InstrumentsAct, 1881.

3. Today, when the matter came up before this Court, we areinformed that the cheque amount has already been paid and it isacknowledged by the respondent.

4. In the peculiar facts and circumstances of this case, we are ofthe view that for doing complete justice the whole litigation shouldbe given a quietus, subject to appropriate terms.

5. Accordingly, we set aside the conviction and sentence imposedon the appellant and allow the appeal….”

8. Since, the petitioner has paid the entirecompensation amount, therefore, quashing of the complaintinitiated at the instance of complainant/respondent would be astep towards securing the ends of justice and to prevent abuse ofprocess of the Court, especially, when the petitioner is facingpangs and suffered agony of protracted trial and thereafterappeal/revision for the last more than four years and has paidthe entire compensation amount.

9. Thus, taking holistic view of the matter and further taking into consideration all the attending facts andcircumstances as also the law laid down by the Hon’ble SupremeCourt in Parbatbhai Aahir,Kanchan Mehta, Bhangu Trading Co., and N.P. Murugesan cases (supra), I find this to be a fitcase to exercise the powers not only under Sections 397, 401and Section 482 of the Code, but even under Section 147 of theAct.

10. In view of the above discussion, it is ordered that theimpugned substantive sentence of simple imprisonment imposedin this case shall stand modified and substituted in lieu of the compensation amount of Rs. 2,70,000/- that stands alreadydeposited/paid by the petitioner. The amount deposited beforethe Registry of this Court be released in favour of therespondent/complainant by remitting the same to his bankaccount.

12. With these observations, the revision petition standsdisposed of, so also the pending application, if any.

31[st] December, 2018.(sanjeev)

(Tarlok Singh Chauhan), Judge.