Disposed

M/S Kbs Enterprises and another v. Spar Weldtech Pvt. Ltd.

Himachal Pradesh HC8 Aug 2024CR.R/143/2024

Case brief

AI extract

What is this about?

Conviction under Section 138 NI Act for dishonoured cheques was upheld by appellate court. On compromise, with compensation fully deposited and complainant consenting, the High Court compounded the offence under Section 147, quashed convictions and acquitted the accused, imposing a 5% compounding fee.

What did the court decide?

Offence compounded; convictions quashed; accused acquitted; deposited amounts released to complainant; 5% compounding fee imposed.

M/S Kbs Enterprises and another Vs Spar Weldtech… — Cheque Dishonour | Himachal Pradesh HC (2024)

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2024:HHC:6650

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Criminal Revision No.143 of 2024 Date of Decision: 8.8.2024

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_____________________________________________________________________ M/s KBS Enterprises and Anr.

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……...Petitioners Versus SPAR Weldtech Pvt. Ltd. …....Respondent Coram Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? For the Petitioners: Mr. Pavinder, Advocate. For the Respondent: Mr. Manik Sethi, Advocate.

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___________________________________________________________________________ Sandeep Sharma, J. (Oral)

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Instant criminal revision petition, lays challenge to judgment dated 6.12.2023, passed by the learned Additional Sessions Judge-I, Solan, District Solan, Himachal Pradesh, in Criminal Appeal No. 11-S/10 of 2023/22, affirming judgment of conviction and order of sentence dated 18.1.2022, passed by the learned Additional Chief Judicial Magistrate Kasauli, District Solan, Himachal Pradesh, in Complaint No. 20-3/2018, whereby the learned trial Court while holding the petitioners-accused guilty of having committed offence punishable under Section 138 of the Negotiable Instruments Act (in short the “Act"), convicted and sentenced him to undergo simple imprisonment for a period of six months and pay compensation to the tune of Rs. 1,15,000/- to the respondent-complainant (herein after referred to as the “complainant” ).

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2. Precisely, the facts of the case, as emerge from the record are that complainant instituted a complaint under Section 138 of the Act, in the competent court of law, alleging therein that accused with a view to discharge his liability issued two cheques amounting to Rs. 25,000/- each and one cheque for a sum of Rs. 73,632/-, but fact remains that two cheques amounting to Rs. 25,000/- and Rs. 73,632/- on their presentation, were dishonoured on account of insufficient funds. Since petitioner No.2-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings before the competent Court of law under Section 138 of the Act.

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3. Learned trial Court on the basis of pleadings as well as evidence adduced on record by the respective parties, vide judgment/order dated 18.1.2022, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, sentenced him as per the description given herein above.

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4. Being aggrieved and dissatisfied with the aforesaid judgment of conviction recorded by the court below, accused preferred an appeal in the court of learned Additional Sessions Judge-I Solan, District Solan,Himachal Pradesh, which also came to be dismissed vide judgment dated 6.12.2023, as a consequence of which, judgment of conviction recorded by the learned

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trial Court came to be upheld. In the aforesaid background, present petitioner-accused has approached this Court by way of instant proceedings, seeking therein his acquittal after setting aside the judgments of conviction recorded by the courts below.

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5. Before case at hand could be heard and decided on its own merit, Mr. Pavinder, learned counsel for the petitioner-accused states since accused has deposited the entire compensation amount i.e. 80% before the Registry of this Court as well as 20% before the learned trial court below and he has no objection in case same is released in favour of the complainant and thereafter, this Court while exercising power under Section 147 of the Act, may compound the offence and acquit the accused. Mr. Pavinder states that he has also filed an application bearing CrMP No. 2672 of 2024, under Section 147 of the Negotiable Instruments Act read with Section 320 of Indian Penal Code, praying therein to compound the offence and set-aside the impugned judgments of conviction and sentence recorded by the courts below.

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2. While fairly acknowledging factum with regard to compromise, Mr. Manik Sethi, learned counsel appearing for the respondentcomplainant states that his client shall have no objection in compounding the offence in case the amount lying deposited in the Registry of this court

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as well as learned trial court is ordered to be released in favour of the complainant.

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3. Having taken note of the fact that entire amount of compensation stands deposited with the Registry of this Court and before learned trial court and the same can be ordered to be released in favour of the respondent, coupled with the fact that and respondent has no objection in compounding the offence, this Court sees no impediment in accepting the prayer made on behalf of the petitioner for compounding of offence while exercising power under Section 147 of the Act as well as in terms of guidelines issued by the Hon’ble Apex Cour t in Damodar S. Prabhu V. Sayed Babalal H. (2010) 5 SCC 663 , wherein it has been categorically held that court, while exercising power under Section 147 of the Act, can proceed to compound the offence even after recording of conviction..

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4. Consequently, in view of the above, present matter is ordered to be compounded and impugned judgments of conviction and sentence dated 18.1.2022 and 6.12.2023, passed by the courts below are quashed and setaside and the petitioner-accused is acquitted of the charge framed against him under Section 138 of the Act. Interim order, if any, is vacated. Bail bonds, if any, are discharged. Petitioner is also held liable to pay 5% of the total dishonoured cheque amount i.e. Rs. 98,632/- as compounding fee with the Himachal Pradesh State Legal Services Authority, within one

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month. It is made clear that in case, needful is not done within the time stipulated by this court, accused besides rendering himself liable for penal consequences would also invite contempt proceedings. Registry of this Court as well as learned trial court below are also directed to release the amount, if any deposited by the accused in favour of the complainant by remitting the same in its saving bank account, detail whereof shall be furnished within a period one week. The petition is disposed of alongwith pending applications, if any.

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August 8, 2024

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(manjit)

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(Sandeep Sharma), Judge

M/S Kbs Enterprises and another v. Spar Weldtech Pvt. Ltd.

Case brief

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M/S Kbs Enterprises and another v. Spar Weldtech Pvt. Ltd.

Case brief

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