CRR/37/2015 of ZAKIR MOHAMMAD YOUSUF WADOO Vs SAHIL JEWELLERS THROUGH VIPIN KUMAR on 31 December 2021

1) By this revision petition, the petitioner has challenged judgment dated 30.10.2015 passed by Additional Sessions Judge, Srinagar, whereby learned Sessions Judge has upheld the judgment dt. 12.08.2014 passed by Judicial Magistrate 1[st] Class (1[st] Additional Munsiff), Srinagar, whereby, in a complaint under Section 138 of the Negotiable Instruments Act (NI Act) filed by respondent, the petitioner has been convicted for the commission of offence under Section 138 of the NI Act and he has been sentenced to undergo simple imprisonment for a period of one year and to pay compensation of Rs.1,13,080/ to the respondent. However, the learned Revisional Court has modified the judgment of conviction passed by the learned trial Magistrate to the extent that the direction with regard to payment of compensation has been set aside.

2) It appears that the complaint that was filed by the respondent against the petitioner herein owed its genesis to two cheques, one bearing No.6876847 dated 16.06.2006 for an amount of Rs.39140/ and the other one bearing No.6876846 dated 17.06.2006 for an amount of Rs.17400/. Both these cheques were drawn by the petitioner in favour of the respondent on account of cost of certain jewellery items which the petitioner had purchased from the respondent.

3) During the pendency of this revision petition, the parties have entered into a compromise and a compromise agreement in this regard has been placed on record. The statements of the parties in proof of the settlement have also been recorded by the Registrar Judicial, whereby they admitted its execution as well as its contents. The relevant terms of the settlement are reproduced as under:

1. That the party No.2[nd] has received Rs.25,00/= (Twenty Five Thousand only) from Party no.1[st]which amount is in addition to the cheque amount of Rs.57,000/= which the party no.1[st] was directed to be deposited before the Hon’ble High Court of Jammu Kashmir & Ladakh, Srinagar in pursuance of the directions of the Hon’ble court dated 11/12/2015. (Twenty Five Thousand only) from Party no.1[st]which amount is in addition to the cheque amount of Rs.57,000/= which the party no.1[st] was directed to be deposited before the Hon’ble High Court of Jammu Kashmir & Ladakh, Srinagar in pursuance of the directions of the Hon’ble court dated 11/12/2015.

2. That the party no.1[st] has deposited the amount of Rs.57,000/= before the Registry of the Honble court in pursuance of orders of Hon’ble court on 14/12/2015. Rs.57,000/= before the Registry of the Honble court in pursuance of orders of Hon’ble court on 14/12/2015.

3. That it is settled between the parties and agreed in clear terms without any coercion or fraud by the party no.2[nd] that party no.2[nd] does not want to pursue the case any further against the party no.1[st]. clear terms without any coercion or fraud by the party no.2[nd] that party no.2[nd] does not want to pursue the case any further against the party no.1[st].

4) The question that arises for consideration is as to whether at this stage of the proceedings i.e. when the petitioner has already been convicted by the trial Magistrate and his conviction has been upheld by the Appellate Court, the offence under Section 138 of NI Act can be compounded. The issue is no longer res integra. In Damodar S. Prabhu vs. Sayed Babalal H., (2010) 5 SCC 663, the Supreme Court while laying down guidelines as to the levy of costs depending upon stage of the compromise arrived at between the parties, held that conviction of an accused in proceedings under Section 138 of NI Act can be set aside even at appellate stage and the accused can be acquitted on the basis of a compromise with the complainant.

Issues

5) In Rajendra vs. Nand Lal (Criminal Appeal Nos.1214-1215 of 2019 arising out of SLP(Crl) Nos.2990-2991/2019) decided on August 06, 2019), the Supreme Court observed that in appropriate cases costs can be waived.

6) In K. M. Ibrahim vs. K. P. Mohammed & anr. (Criminal Appeal No.2281 of 2009 decided on December 2. 2009), the Supreme Court observed that Section 147 of NI Act does not bar the parties from compounding an offence under Section 138 even at appellate stage of the proceedings.

7) Having regard to the aforesaid position of law, even though the parties have arrived at a settlement after the Appellate Court had upheld the conviction of the petitioner, yet keeping in view the spirit of Section 147 of the NI Act, the offence under Section 138 of the Act can be compounded, as the respondent has clearly agreeg that on account of precarious financial condition of the petitioner, he is ready to accept the amount of Rs.25000/ which he has already received from the petitioner and the amount which is deposited with the Registry of this Court as full and final settlement of his claim. Therefore, this is a fit case where costs are required to be waived while compounding the offence.

8) Accordingly, the settlement arrived at between the parties is accepted and the parties are permitted to compound the offence. The judgments of both the courts below are set aside and the petitioner is acquitted of the charges. The Registrar Judicial is directed to release the amount deposited by the petitioner before the Registry in favour of the respondent after proper verification and identification.

(Sanjay Dhar) Judge Srinagar 31.12.2021“Bhat Altaf, PS”Whether the order is speaking: Yes/NoWhether the order is reportable: Yes/No