Point of Law : Section 362 of Cr. P.C. are reproduced as court not to alter judgment.

JUDGMENT :

Virender Singh, J.

Petitioner Rakesh Awasthi has filed the present petition, under Section 482 of the Code of Criminal Procedure, (hereinafter referred to as ‘the Cr.P.C.”) read with Section 147 of the Negotiable Instruments Act, 1881, (hereinafter referred to as ‘the N.I. Act’) for following reliefs :

“(I) To order compounding of the offence allegedly committed by the petitioner under Section 138 of the Negotiable Instruments Act.

(II) While exercising power under Section 482 of the Code of Criminal Procedure, order setting aside of the judgment dated 9.11.2016 passed by learned Additional Sessions Judge-III, Kangra at Dharamshala camp at Palampur, District Kangra, Himachal Pradesh in Cr. Appeal No. 158-P/X/2013/11 as also judgment of conviction and order of sentence dated 14/15.11.2011 passed by earned Judicial Magistrate First Class, Court No. 1, Palampur, District Kangra, Himachal Pradesh in Cr. Complaint No. 190-III/2010 and thereafter acquit the accused.

(III) To set aside the order dated 16.5.2023 passed by learned Additional Chief Judicial Magistrate Palampur, District Kangra, in Cr. Complaint No. 190-III/2010, whereby non-bailable warrants has been issued against the petitioner.”

2. For the sake of convenience, the parties to the present petition, hereinafter, are referred to, in the same manner, in which, they were referred to, by the learned trial Court.

3. The complainant has filed a complaint before the Court of learned Judicial Magistrate First Class, Court No. 1, Palampur, District Kangra (hereinafter referred to as ‘the trial Court’) under Section 138 of the N.I. Act., against the accused on the basis of the fact that the accused had engaged the complainant as Medical Officer in DTIL Hospital, Baijnath, on monthly salary of Rs.15,000/-. Accused, in discharge of his liability, had issued a post dated cheque No. 309933, dated 12.4.2010, for a sum of Rs.45,000/-, drawn on Punjab National Bank, Baijnath. While handing over the cheque to the complainant, accused had assured that whenever, the same is presented to the Bank, the same will be honoured/encashed.

4. Consequently, the complainant presented the said cheque to the Bank of the accused, through his banker, i.e. State Bank of India, Palampur, for encashment, however, the banker of the accused dishonoured the cheque, vide memo, dated 13.4.2010. Thereafter, in compliance to the statutory provisions of the N.I. Act, statutory notice was issued, which was duly received, but, despite receipt of the notice, payment of the cheque amount had not been made by the accused.

5. Upon this, the learned trial Court, prima-facie, found a case against the accused, as such, the accused was summoned and notice of accusation was put to him, to which, he has pleaded not guilty and claimed trial. Consequently, the complainant was directed to lead evidence.

6. After evidence of the complainant was adduced, statement of the accused was recorded under Section 313 Cr. P.C. Learned trial Court, after hearing learned counsel for the complainant as well as accused, has convicted the accused, for the commission of offence, punishable under Sections 138 of the N.I. Act, and sentenced him to undergo simple imprisonment, for a period of six months. In addition to this, he has further been directed to pay a compensation amount of Rs.55,000/- to the complainant.

7. The said judgment of conviction and order of sentence has been assailed by the accused, before the learned Additional Sessions Judge-III, Kangra at Dharamshala, Camp at Palampur, (hereinafter referred to as ‘the First Appellate Court’), by way of Cr. RBT Appeal No. 158-P/X/2013/11. However, the said appeal has also been dismissed by the learned First Appellate Court, vide judgment dated 9.11.2016.

8. Against the dismissal of the appeal, the accused approached this Court by filing Criminal Miscellaneous Petition (Main) No. 1773 of 2021 in Cr.MPST No. 4152 of 2021. Since, the petition was filed after the prescribed period of limitation,