Diwan Chand Vs Sunder singh

1 Neutral Citation No. ( 2025:HHC:321 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Criminal Revision No. 05 of 2025 Decided on: 02.01.2025 ________________________________________________ Diwan Chand ....Petitioner Versus Sunder Singh …Respondent Coram The Hon’ble Mr. Justice Sushil Kukreja, Judge. Whether approved for reporting?¹ For the petitioner: Mr. Harsh Shroal, Advocate. For the respondent: Mr. Sachin Sunail, Advocate. ________________________________________________ Sushil Kukreja, Judge (oral)

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The instant petition has been filed by the petitioner-accused under Section 442 of the Bharatiya Nagrik Suraksha Sanhita, 2023 (for short “BNSS”) against judgment dated 09.05.2024, passed by learned Sessions Judge Kinnaur, Sessions Division at Rampur Bushahr, H.P., in Criminal Appeal No. 59 of 2023, whereby the judgment of conviction and order of sentence, dated 08.08.2023, passed by learned Judicial Magistrate First Class, Anni, District Kullu, H.P., in Case No. 204/2018, was affirmed.

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The brief facts, giving rise to the present petition, can succinctly be summarized as under:

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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2 Neutral Citation No. ( 2025:HHC:321 )

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The complainant-Shri Sunder Singh was running

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a garment shop in the name and style “Shree Hans Readymade Garments, near bus stand Anni, District Kullu, H.P. and the petitioner-accused was also running a readymade garments shop in that area. The complainant and the petitioner-accused were well acquainted with each other. During the month of January, 2018, the petitioneraccused approached the complainant and requested to lend him Rs.1,00,000/- for returning the previous loan to sanction fresh loan from the Punjab National Bank, Ani. The complainant asked the petitioner-accused to first return the previously borrowed money, but the accused assured him that he will return the same, on sanctioning of the loan amount. Acceding to the request of the petitioner-accused, the complainant paid Rs.90,000/- to him in two installments, i.e. Rs.50,000/- and Rs.40,000/-. After some days, the petitioner-accused informed the complainant that his loan case was rejected and he (petitioner-accused) requested the complainant to give Rs.50,000/- to him for returning the KCC loan. He again assured the complainant that within a week the bank will release the whole amount of KCC loan and he will return the entire amount of the complainant. The

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complainant paid Rs.42,000/- to the complainant in presence of his wife. Thereafter, the petitioner-accused, in order to discharge his financial liability towards the complainant issued cheques bearing No. 481387, dated 22.05.2018, amounting to Rs.2,48,000/- cheque bearing No. 481369, dated 22.05.2018 amounting to Rs.20,000/- and cheque bearing No. 195345, dated 18.09.2018, amounting to Rs.1,32,000/- in favour of the complainant, drawn at Punjab National Bank, Branch Office Anni, District Kullu, H.P. and an agreement was executed between the parties. The complainant, presented cheque bearing No. 195345, dated 18.09.2018 amounting to Rs.1,32,000/- for encashment, but the same was dishonoured with remarks “Insufficient funds”. Subsequently, on 03.10.2018, the complainant sent a legal notice to the petitioner-accused, through registered post and the petitioner-accused failed to make the payment of the cheque amount within the stipulated time. Resultantly, the complainant filed a complaint under Section 138 of Negotiable Instruments Act (for short “the Act”) before the learned Trial Court.

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The learned Trial Court after conclusion of the

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trial convicted the accused under Section 138 of the Act and

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4 Neutral Citation No. ( 2025:HHC:321 )

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sentenced him to undergo simple imprisonment for a period of six months and to pay compensation of Rs.1,32,000/- to the complainant and in default of payment of compensation, the accused was further ordered to undergo simple imprisonment for a period of three months.

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Being dissatisfied, the accused/petitioner/convict preferred an appeal before the learned Lower Appellate Court, which was dismissed, vide judgment dated 09.05.2024, and the judgment and order of sentence dated 08.08.2023, passed by the learned Trial Court, was affirmed. Hence, accused/petitioner/convict-Diwan Chand preferred the instant petition under Section 442 of BNSS with a prayer that his petition be allowed and the impugned judgments and order of sentence passed by the learned Courts below be set-aside and he be acquitted.

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Alongwith the instant petition, an application (Cr.MP No. 5399 of 2024) under Section 528 of BNSS read with Section 147 of the Act has been filed by the petitioneraccused seeking permission of this Court to compound the offence on the basis of compromise deed filed alongwith the application by setting-aside the judgment of conviction and order of sentence dated 08.08.2023, passed by learned

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5 Neutral Citation No. ( 2025:HHC:321 )

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Judicial Magistrate 1^st Class Anni, District Kullu, H.P., which was affirmed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., vide judgment dated 09.05.2024, in Criminal Appeal No. 59 of 2023.

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Today, complainant-Shri Sunder Singh is present before this Court and his statement has been recorded and separately placed on the file.

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In his statement, complainant-Shri Sunder Singh stated that he has compromised the matter with the petitioner/accused, as per the terms and conditions of compromise deed dated 21.11.2024 (Annexure A-1) annexed with Cr.MP(M) No. 5399 of 2024, and he has no objection, in case the judgment of conviction and order of sentence dated, 08.08.2023, passed by learned Judicial Magistrate 1^st Class, Anni, District Kullu, H.P., which was further affirmed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, vide judgment dated 09.05.2024, is quashed and set aside and the petitioner-accused is acquitted of the offence punishable under Section 138 of the Act.

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I have heard the learned counsel for the parties

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and have also gone through the material available on record.

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Having taken note of the fact that the petitioner-

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accused and the complainant-respondent have settled the matter and the complainant has no objection in compounding

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the offence, therefore, this Court sees no impediment in accepting the prayer made on behalf of the accusedpetitioner 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 Court in Damodar S. Prabhu V. Sayed Babalal H., (2010) 5 SCC 663 , wherein the Hon’ble Apex Court has held as under:-

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“10. At present, we are of course concerned with Section 147 of the Act, which reads as follows:-

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“147. Offences to be compoundable– Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable.”

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At this point, it would be apt to clarify that in view of the nonobstante clause, the compounding of offences under the Negotiable Instruments Act, 1881 is controlled by Section 147 and the scheme contemplated by Section 320 of the Code of Criminal Procedure (hereinafter “CrPC”) will not be applicable in the strict sense since the latter is meant for the specified offences under the Indian Penal Code, 1860.

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11. So far as the CrPC is concerned, Section 320 deals with offences which are compoundable, either by the parties without the leave of the court or by the parties but only with the leave of the Court. Sub-section (1) of Section 320 enumerates the offences which 9 are compoundable without the leave of the Court, while subsection (2) of the said section specifies the offences which are compoundable with the leave of the Court.

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12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub-section (9) of Section 320 of the CrPC which states that ‘No offence shall be compounded except as provided by this Section’. A bare reading of this provision would lead us to the inference that offences punishable under

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7 Neutral Citation No. ( 2025:HHC:321 )

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laws other than the Indian Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320(9) of the CrPC, especially keeping in mind that Section 147 carries a non obstante clause.”

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In K. Subramanian Vs. R. Rajathi ; (2010) 15 Supreme Court Cases 352 , it has been held by the

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Hon’ble Apex Court that in view of the provisions contained in Section 147 of the Act read with Section 320 of Cr.P.C., compromise arrived at can be accepted even after recording of the judgment of conviction. The relevant portion of the judgment is reproduced as under:-

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“6. Thereafter a compromise was entered into and the petitioner claims that he has paid Rs. 4,52,289 to the respondent. In support of this claim, the petitioner has produced an affidavit sworn by him on 1.12.2008. The petitioner has also produced an affidavit sworn by P. Kaliappan, Power of attorney holder of R. Rajathi on 1.12.2008 mentioning that he has received a sum of Rs. 4,52,289 due under the dishonoured cheques in full discharge of the value of cheques and he is not willing to prosecute the petitioner.

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7. The learned counsel for the petitioner states at the Bar that the petitioner was arrested on 30.7.2008 and has undergone the sentence imposed on him by the trial Court and confirmed by the Sessions Court, the High Court as well as by this Court. The two affidavits sought to be produced by the petitioner as additional documents would indicate that indeed a compromise has taken place between the petitioner and the respondent and the respondent has accepted the compromise offered by the petitioner pursuant to which he has received a sum of Rs.4,52,289. In the affidavit filed by the respondent a prayer is made to permit the petitioner to compound the offence and close the proceedings.

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8. Having regard to the salutary provisions of Section 147 of the Negotiable Instruments Act read with Section 320 of the Code of Criminal Procedure, this Court is of the opinion that in view of the compromise arrived at between the parties, the petitioner should be permitted to compound the offence committed by him under Section 138 of the Code.”

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8 Neutral Citation No. ( 2025:HHC:321 )

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Since, in the instant case, the petitioner-accused

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after being convicted under Section 138 of the Act, has compromised the matter with the complainant, prayer for compounding the offence can be accepted in terms of the aforesaid judgments passed by the Hon’ble Apex Court.

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Therefore, in view of the detailed discussion made hereinabove as well as law laid down by the Hon’ble Apex Court, the application is allowed and matter is ordered to be compounded.

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Accordingly, the present matter is ordered to be compounded and the impugned judgment of conviction and order of sentence, dated 08.08.2023, passed by learned Judicial Magistrate 1^st Class Anni, District Kullu, H.P., in CIS Case No. 204/2018, and affirmed by learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, H.P., vide judgment dated 09.05.2024, in Criminal Appeal No. 59 of 2023, are quashed and set-aside and the petitioneraccused is acquitted of the charge framed against him under Section 138 of the Act. Bail bonds, if any, stand discharged.

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Undisputedly, the total amount of the cheque is Rs.1,32,000/-, however, the learned counsel for the

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9 Neutral Citation No. ( 2025:HHC:321 )

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petitioner submitted that the petitioner is a poor person and

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the imposition of compounding fee may be reduced.

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16. In case K. Subramanian vs. R. Rajathi (supra),

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the Hon’ble Apex Court had issued the guidelines with respect to the imposition of compounding fee, which read as

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under:-

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“THE GUIDELINES

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(i) In the circumstances, it is proposed as follows:

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(a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the Court without imposing any costs on the accused.

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(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Curt deems fit.

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(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

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(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

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25. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the court is spent on the trial of these cases and the parties are not liable to pay any court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent court can of course reduce the costs with regard to the specific facts and circumstances of a case, while

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recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end.”

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Therefore, taking into consideration the law laid

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down by the Hon’ble Apex Court (supra) and the financial condition of the petitioner, since the competent Courts can reduce the compounding fee with regard to the specific facts and circumstances of the case, the petitioner is directed to deposit token compounding fee of Rs. 3,000/- (rupees three thousand) only with the H.P. State Legal Services Authority, Shimla, H.P., within four weeks from today.

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The learned counsel for the petitioner-accused submitted that the petitioner is undergoing sentence in the instant case and is presently lodged in Model Central Jail Kanda. Since the instant petition filed by the petitioner is allowed and the judgment of conviction and order of sentence, dated 08.08.2023, passed by learned Judicial Magistrate 1^st Class Anni, District Kullu, H.P., and affirmed by learned Sessions Judge Kinnaur Sessions Division at Rampur Bushahr, H.P., have been quashed and set-aside and the petitioner-accused has been acquitted, the Superintendent, Model Central Jail Kanda, is directed to release him forthwith, if not required in any other case.

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The petition stands disposed of accordingly, so

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

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( Sushil Kukreja )^nd January, 2025 Judge

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(virender)

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VIRENDER BAHADUR Digitally signed by VIRENDER BAHADURDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=3c5f9e29e91dda973d928ffd06d59832d2dd97b9e2898117bfa738990a0ea7ba, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=fed3018c26866cd3d598cb3749b3fb29d4abef4b84983689d027cb645c9bb134, CN=VIRENDER BAHADURReason: I am the author of this documentLocation: Date: 2025.01.02 17:59:06+05'30'Foxit PDF Reader Version: 2023.2.0

Diwan Chand v. Sunder singh

Case brief

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Diwan Chand v. Sunder singh

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