Allowed

Chaman Sharma v. Bir Sen

Himachal Pradesh HC1 Dec 2017CR.R/455/2015

Case brief

AI extract

What is this about?

In a criminal revision against a conviction and sentence under Section 138 of the Negotiable Instruments Act, the High Court of Himachal Pradesh allowed the petition. Relying on Parbatbhai Aahir, the Court held that since the parties had settled and the offence was not heinous, continuing proceedings would cause oppression. The judgment was quashed, and the petitioner was acquitted.

What did the court decide?

The impugned judgments dated 17.1.2015 and 31.7.2013/31.8.2013 are set aside, the proceedings are quashed, and the petitioner is acquitted of the offence.

Chaman Sharma Vs Bir Sen — Cheque Dishonour | Himachal Pradesh HC (2017)

¶1

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶2

Cr. Revision No. 455 of 2015.

¶3

Date of decision: 1^st December, 2017.

Chaman Sharma

..…..Petitioner.

Versus

Bir Sen

……Respondent.

Coram

The Hon’ble Mr. Justice Tarlok Singh Chauhan, Judge. Whether approved for reporting?¹ No

¶11

For the Petitioner : Mr. Ashok Verma, Advocate, vice Mr. D.S. Kaith, Advocate, with petitioner in person.

¶12

For the Respondent : Mr. K. B. Khajuria, Advocate.

¶13

Tarlok Singh Chauhan, Judge (Oral).

¶14

This criminal revision is directed against the judgment dated 17.1.2015 passed by learned Additional Sessions Judge (I), Shimla, H.P. Camp at Rohru, in Cr. Appeal No. 11-R/10 of 2013 whereby he dismissed the appeal filed by the petitioner.

¶15

Looking to the nature of order, I propose to pass, it is not at all necessary to deal with the facts in detail. Suffice it to state that the complainant-respondent filed a complaint against the petitioner under Section 138 of the Negotiable Instruments Act (for short ‘Act’) which after trial was allowed by the trial Magistrate and the petitioner was ordered to be convicted and sentenced to undergo simple imprisonment for a period of one month and to pay compensation amount of `4,30,000/- to the complainant. The petitioner filed an appeal assailing

¶16

Whether thereportersof thelocal papers may beallowedtoseetheJudgment? Yes

¶17

¶18

the aforesaid conviction and sentence and the same was dismissed by the learned Additional Sessions Judge (1), Shimla, H.P. Camp at Rohru. It is thereafter that the petitioner has filed the instant revision petition assailing the aforesaid judgement/order passed by the learned Courts below.

¶19

It is not in dispute that as regards the compensation awarded by the learned Court below, the same stands paid to the respondent and in addition thereto, the petitioner has paid today a further sum of `10,000/- in the open Court and in this view of the matter and now for this reason, even the complainant/respondent does not want to pursue and prosecute the instant lis any further and has no objection in case the petitioner is acquitted.

¶20

From the records of the case, I find that this is not a case wherein the offence for which the petitioner has been charged can ‘ stricto sensu’ be termed to be an offence against the State. Therefore, this is a case where the continuation of criminal case against the petitioner would put the petitioner to great oppression and prejudice and extreme injustice would be caused to him by not setting aside the impugned judgments of conviction and sentence.

¶21

This court is not powerless in such situation and adequate powers have been conferred upon it not only under sections 397 read with Section 401 or Section 482 Cr.P.C. (hereinafter referred to as the Code) but also under Section 147 of the Act for accepting the settlement entered into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to subserve the ends of justice or/ and to prevent abuse of the process of

¶22

¶23

any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc.

¶24

Further, the moot question is also whether the Court in such like cases can set aside the judgments of conviction and sentence where the petitioner has been charged under Section 138 of the Act. This question need not detain this Court any longer in view of the three Judges’ Bench decision of the Hon’ble Supreme Court in Parbatbhai Aahir @ Parbatbhai and 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 the subject, the Hon’ble Supreme Court has laid down the following broad principles for exercise of powers under Section 482 of the Code which read thus:-

¶25

“ (i) Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process of any court or to secure the ends of justice. The provision does not confer new powers. It only recognises and preserves powers which inhere in the High Court;

¶26

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

¶27

(iii) In forming an opinion whether a criminal proceeding or complaint should be quashed in exercise of its jurisdiction under

¶28

¶29

Section 482, the High Court must evaluate whether the ends of justice would justify the exercise of the inherent power;

¶30

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

¶31

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

¶32

(vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing persons for serious offences;

¶33

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

¶34

(viii) Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or similar transactions with an essentially civil flavour may in appropriate situations fall for quashing where parties have settled the dispute;

¶35

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

¶36

¶37

(x) There is yet an exception to the principle set out in propositions (viii) and (ix) above. Economic offences involving the financial and economic well-being of the state have implications which lie beyond the domain of a mere dispute between private disputants. The High Court would be justified in declining to quash where the offender is involved in an activity akin to a financial or economic fraud or misdemeanour. The consequences of the act complained of upon the financial or economic system will weigh in the balance.”

¶38

As already observed herein, the parties have already reached an amicable settlement and at best it was the complainant/respondent, who could be said to be affected and aggrieved party, but herein even the affected and aggrieved party i.e. complainant/respondent is not interested to pursue the complaint and does not want to hold the petitioner responsible for the offence under the Act. Therefore, quashing of the complaint initiated at the instance of the complainant/respondent would be a step towards securing the ends of justice and to prevent abuse of process of the Court.

¶39

Keeping in mind the aforesaid exposition of law, it is clear that the facts of this case do not in any manner fall within any of the exceptions culled out by the Hon’ble Supreme Court in Parbatbhai Aahir’s case (supra).

¶40

Thus, taking holistic view of the matter and further taking into consideration all the attending facts and circumstances as also the law laid down by the Hon’ble Supreme Court in Parbatbhai Aahir’s case (supra), I find this to be a fit case to exercise the powers not only under Sections 397, 401 and Section 482 of the Code, but even under Section 147 of the Act.

¶41

Even in the given facts and circumstances, particularly, in view of the compromise entered into between the parties, there is no

¶42

¶43

justification for continuation of the proceedings even before the learned Additional Sessions Judge (I), Shimla, H.P. therefore, instead of remanding the matter to the said Court, the proceedings are given quietus.

¶44

In view of the subsequent developments, more particularly, the compromise entered into between the parties, the judgment dated 17.1.2015 passed by learned Additional Sessions Judge (I) Shimla, H.P. Camp at Rohru and the judgment/order dated 31.7.2013/ 31.8.2013 passed by learned Judicial Magistrate 1^st Class, Court No.II, Rohru, H.P.in Case No. 129/3 of 2012, are set-aside. Consequently, the petitioner is acquitted of the offence under Section 138 of the Act.

¶45

The revision petition is disposed of in the aforesaid terms,

¶46

so also the pending application(s), if any.

¶47

1^st December, 2017.

¶48

1^st December, 2017. (Tarlok Singh Chauhan) (GR) Judge

Chaman Sharma v. Bir Sen

Case brief

What is this about?

What did the court decide?

Chaman Sharma v. Bir Sen

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Niku Ram Vs Tulsi Ram

Sumna Devi Vs State of Hp

Anil Kumar Jamwal Vs Reena Devi

Pawan Kumar Vs Neeraj Kumar

State of Hp Vs Kumar Chand

Budhu Ram Vs Thakur Dutt Sharma