CRL.REV.P./190/2016 of SANJEEV KUMAR Vs THE STATE (GOVT OF NCT OF DELHI) & ANR

*IN THE HIGH COURT OF DELHI AT NEW DELHI

+CRL.REV.P. 190/2016SANJEEV KUMAR..... Petitioner

Through:Mr.Abhilash Arora, Adv.

versus

THE STATE (GOVT OF NCT OF DELHI) & ANR ..... RespondentThrough:Mr.Izhar Ahmad, APP.Mr.Surender Nagpal and Mr.RakeshKatiyal, Advs. for R-2.

CORAM:

HON'BLE MR. JUSTICE P.S.TEJIO R R%24.05.2016

By way of the present revision petition filed under Section397/401 of Cr.P.C.read with Section 482 Cr.P.C., the petitioner seeksto challenge the judgment/ order of conviction and sentence dated02.06.2015and03.06.2015respectivelypassedbylearnedMetropolitan Magistrate, against which the petitioner also preferredcriminal appeal before the Sessions Court and in consequence thereto,the Sessions Court dismissed the appeal vide order dated 23.02.2016,upholding the judgment and order on sentence passed by learnedMetropolitan Magistrate.The petitioner was awarded sentence ofsimple imprisonment for one year and directed to pay compensationof Rs.4,50,000/- to the complainant.In default of payment ofcompensation,thepetitionerwastofurtherundergosimpleimprisonment for six months. The learned Additional Sessions Judge

vide judgment dated 23.02.2016 maintained the conviction opiningthat the sentence awarded by the Trial Court was neither excessivenor unreasonable and thus the same did not require any interferencefrom the Court and thus upheld the impugned order on the point ofsentence.

In nutshell, the brief facts of the case are that the respondentNo.2 had filed complaint under Section 138 of the NegotiableInstruments Act, 1881 against the petitioner-herein alleging that heknew the appellant for the last 5-6 years and he had good relationswith him. It was alleged that the petitioner was running garmentshop in the name and style of M/s Mateshwar Garments. It wasfurther alleged that in March, 2008, the petitioner approached therespondent No.2 for financial help to the tune of Rs.5 lakhs to meethis business commitments and requested for Rs.1 lakh immediately. Itwas alleged that on the request of the petitioner and the fact that therespondent No.2 had good relations with the appellant, he had given aloan of Rs.80,000/- vide cheque bearing No.584084 dated April 05,2008 drawn on ICICI Bank Ltd, Delhi and same was encashed by thepetitioner. It was further alleged that in April, 2008, respondent No.2had given further loan of Rs.2.20 lacs in cash. In this way,respondent No.2 had given loan of Rs.3 lacs to the petitioner. It wasalleged that at the time of taking loan, petitioner assured therespondent No.2 that he would repay the same within 3-6 months oras soon as possible, but thereafter, he failed to repay the loan amount.However, after consistent persuasions, petitioner gave cheque

bearing No. 567801 dated July 25, 2010 (Ex.CW1/1) in the sum ofRs.3 lacs drawn on Bank of Baroda, Maurya Enclave in discharge ofhis above liability. However, on presentation the said cheque returnedunpaid with remarks 'account closed' vide memo dated July 31, 2010(Ex.CW1/2). Thereafter, respondent No.2 had sent legal noticedated August 23, 2010 (Ex.CW1/3) through registered post and UPC.But despite serving the legal notice, petitioner failed to make thepayment. Thus, respondent No.2 filed the criminal complaint againstthe petitioner. Vide order dated 22.11.2012, notice under Section251 Cr. P.C was served upon the petitioner wherein petitioner took apleathathehadtakenbusinessloanfromtherespondentNo.2/complainant and at the time of taking the loan, the aforesaidcheque (Ex.CW1/1) was given as security. Later on, he repaid theentire amount to the respondent No.2/complainant, but respondentNo.2/complainant misused the cheque which was given blank towardssecurity and further took the plea that he did not have any liabilitytowards the complainant and further stated that he had not receivedany legal notice.Trial commenced, evidence was led and ultimately the trial ofthe case concluded in conviction of the petitioner. The petitioner alsochallenged the judgment and order on sentence before the SessionsCourt which was also dismissed vide judgment dated 23.02.2016.Hence, the petitioner has preferred the present revision petition.

During the course of proceedings before this Court, at therequest of the parties, the matter was referred to Delhi High Court

Mediation and Conciliation Centre where both the parties are stated tohave amicably settled their disputes by entering into settlementdated 09.05.2016. The petitioner is stated to have paid the amount asper the settlement to the respondent No.2 and is also stated to havedeposited the compounding fee with the Registrar General of thisCourt. Learned counsel for the petitioner thus prays for compoundingthe offence for which the petitioner has been convicted as it is acompoundable offence and since the matter has been amicably settledbetween the parties and the complainant has also agreed to compoundthe offence against the petitioner.

Statement of the complainant has been recorded separately inwhich he has stated that he has settled the matter with the petitionerand received his dues and he has no objection if the Complaint Casefiled by him under Section 138 of the Negotiable Instruments Act,1881 is quashed and the offence punishable under Section 138 ofNegotiable Instruments Act, 1881, is compounded.

I have heard learned counsel for the parties and have also gonethrough the impugned judgments and orders passed by learnedMetropolitan Magistrate as well as learned Additional Sessions Judge.

After considering the submissions advanced by both the sides,this Court observes that the petitioner has been convicted for theoffence punishable under Section 138 of Negotiable Instruments Act,1881, which is compoundable offence. This Court also observes thata settlement has been arrived at between the petitioner and respondent

no.2 wherein both the parties have settled their disputes and therespondent no.2 has cooperated with the petitioner for compoundingof the offence.

For compounding the offence under Section 138 of NegotiableInstruments Act, 1881, the Hon’ble Supreme Court in Damodar X.Prabhu v. Sayed Babalal H., (2010) 5 SCC 663, has framed theguidelines, which read as under:

“THE GUIDELINES

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

a.That directions can be given that the Writ ofSummons be suitably modified making it clear tothe accused that he could make an application forcompounding of the offences at the first or secondhearing of the case and that if such an applicationis made, compounding may be allowed by thecourt without imposing any costs on the accused.Summons be suitably modified making it clear tothe accused that he could make an application forcompounding of the offences at the first or secondhearing of the case and that if such an applicationis made, compounding may be allowed by thecourt without imposing any costs on the accused.

b.If the accused does not make an application forcompounding as aforesaid, then if an applicationfor compounding is made before the Magistrate atthesubsequentstage,compoundingcanbeallowed subject to the condition that the accusedwill be required to pay 10% of the cheque amountto be deposited as condition for compoundingwiththeLegalServicesAuthority,orsuchauthority as the Court deems fit.compounding as aforesaid, then if an applicationfor compounding is made before the Magistrate atthesubsequentstage,compoundingcanbeallowed subject to the condition that the accusedwill be required to pay 10% of the cheque amountto be deposited as condition for compoundingwiththeLegalServicesAuthority,orsuchauthority as the Court deems fit.

c.Similarly, if the application for compounding ismade before the Sessions Court or High Court inrevision or appeal, such compounding may beallowed on the condition that the accused pays15% of the cheque amount by way of costs.made before the Sessions Court or High Court inrevision or appeal, such compounding may beallowed on the condition that the accused pays15% of the cheque amount by way of costs.

d.Finally, if the application for compounding ismade before the Supreme Court, the figure wouldincrease to 20% of the cheque amount.”made before the Supreme Court, the figure wouldincrease to 20% of the cheque amount.”

Today, the receipt has been produced in the Court which showsthat compounding fees of Rs.45,000/- has been deposited by thepetitioner by way of demand draft in the name of the RegistrarGeneral of this Court.

In view of the facts and circumstances; the fact that the partieshave settled their disputes by entering into settlement; the fact thatthe petitioner has also deposited 15% of the compensation amountwith the Registrar General of this Court, and apart from the aforesaid,the offence punishable under Section 138 of Negotiable InstrumentsAct, 1881 is compoundable offence, this Court finds no impedimentin compounding the offence under which the petitioner has beenconvicted and sentenced. Resultantly, the offence under Section 138of Negotiable Instruments Act, 1881 under which the petitioner hasbeen convicted and sentenced is compounded.Consequently, thejudgment of conviction and order on sentence dated 02.06.2015 and03.06.2015 respectively and the order of the appellate Court dated23.02.2016 are hereby set aside and the petitioner is acquitted for theoffence under Section 138 of the Negotiable Instruments Act, 1881.

The petitioner is behind the bar.The Jail Superintendent isdirected to release the petitioner forthwith, if not required in any othercase.

The petition is disposed of in the aforesaid terms.

The date already fixed i.e. 11.07.2016 stands cancelled.

All the pending applications also accordingly stand disposed of.

MAY 24, 2016dm

P.S.TEJI, J

STATEMENT OF Mr. ARUN KUMAR, S/O SH. OM PRAKASH,R/O: 23, GROUND FLOOR, GUJRANWALA TOWN, DELHI.

On S.A.

I am the respondent No.2/complainant in the present matter.I have already settled the matter with the petitioner before theDelhi High Court Mediation and Conciliation Centre and receivedmy dues. I have no objection if the Complaint Case filed by me isquashed and the offence punishable under Section 138 ofNegotiable Instruments Act, 1881, is compounded.

RO & AC

MAY 24, 2016dm

P.S.TEJI, J