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2008 Supreme(Jhk) 374
Jharkhand High Court
D.K.Sinha,J.
Sisi Baha Topno - Appellant
Versus
State Of Jharkhand - Respondent
Decided On : 31 March, 2008
The court upheld the validity of the compromise agreement and applied Section 320(8) of the Code of Criminal Procedure to acquit the petitioner.
Headnote:
N.I. Act - Criminal Revision - Section 138 - 138 - 357(3) - 320(6) - 320(8)
Fact of the Case:
The petitioner, a college principal, was convicted under Section 138 of the N.I. Act for issuing bounced cheques to the complainant, a lecturer at the college, in a loan transaction. The complainant filed a complaint, leading to the conviction and sentencing of the petitioner.
Finding of the Court:
The court considered a compromise petition filed by both parties, where the petitioner had already paid a portion of the loan amount and agreed to pay the remaining balance. The complainant waived the compensation amount, and a joint compromise was executed.
Issues: The issues revolved around the conviction under Section 138 of the N.I. Act, the settlement between the parties, and the exemption of the petitioner from surrendering.
Ratio Decidendi: The court, considering the compromise agreement and the payment made by the petitioner, set aside the imprisonment sentence and waived the compensation amount. The petitioner was acquitted under Section 320(8) of the Code of Criminal Procedure.
Final Decision: The criminal revision was allowed, and the petitioner was acquitted with exemption from surrendering.
D.K. Sinha, J.
1. Petitioner has preferred this criminal revision against the impugned judgment and order dated 8.6.2007 passed by 4th AJC-cum-Special Judge, No. II, CBI (AHD), Ranch! in Cr. Appeal No. 78 of 2007, whereby and whereunder, judgment of conviction of the petitioner under Section 138 of N.I. Act and sentence thereto passed by Sri R.S. Mishra, Judicial Magistrate, 1st Class, Ranchi in T.R. No. 251 of 2007 arising out of Complaint Case No. 310 of 2005 was affirmed.
2. Short fact of the case was that the complainant-opposite party No. 2 Prof. Janardan Prasad filed a complaint petition before the Court stating therein that he was working as Lecturer in Gossner College, Ranchi whereas petitioner was the Principal of the said College. The petitioner had earlier approached him for some personal loan and accordingly, complainant-opposite party No. 2 Prof. Janardan Prasad paid a sum of Rs. 1,74,000/- to the petitioner on 30.8.1998 in cash and the petitioner agreed to repay the said loan amount without interest preferably within two months but the amount could not be returned to him within the stipulated period. Complainant persuaded the matter and ultimately it was alleged that the petitioner issued two cheques in his favour drawn on Indian Overseas Bank, Club Road Branch, Ranchi duly signed by herself in presence of the wife of the complainant-opposite party No. 2. When the cheques were presented for payment, both the cheques bounced and returned unpaid with an endorsement "Insufficient Fund" and in that manner petitioner defrauded the complainant-opposite party No. 2 deliberately with mala fide intention. The trial Court convicted the petitioner after full trial for the charge under Section 138 of the N.I. Act and sentenced him to undergo simple imprisonment for six months and to pay Rs. 1,00,000/- (One Lakh) to the complainant-opposite party No. 2 by way of compensation under Section 357(3) of the Code of Criminal Procedure.
3. Against the dismissal of the appeal by the Court of 4th AJC, Ranchi as aforesaid, petitioner preferred the instant criminal revision. Complainant- opposite party No. 2 entered appearance by executing vakalat-nama in favour of Mr. Arvind Kr. Lall, Advocate and a compromise petition was filed by presenting LA. No. 756 of 2008 under Section 320(6) of the Code of Criminal Procedure duly signed by both the parties and supported by their respective affidavits. With the permission of the Court Mr. Arvind Kr. Lall, counsel for the complainant- opposite party No. 2 identified the signature of the opposite party No. 2 Prof. Janardan Prasad on the affidavit. It was contended in the compromise petition that dispute was settled with the intervention of friends and well wishers and a joint compromise was executed on 27.3.2008. The petitioner in terms of the compromise has already paid a sum of Rs. 1,50,000/- to the complainant-opposite party No. 2 and the balance amount to the tune of Rs. 24,000/- was agreed to be paid in the next six months under the surety of one Avay Chaman Khalkho, who is son-in-law of the petitioner. The amount of compensation of Rs. 1,00,000/- was waived by the complainant- opposite party No. 2 and in support thereof a memo of compromise agreement was executed before the Notary and the same has been brought on the record.
4. Mr. M.K. Dey, learned Counsel for the petitioner, submitted that in view of the compromise petition and that the issues have been resolved craves indulgence of this Court by according exemption to the petitioner to surrender, in view of the decision reported in 2008 (1) East Cr C 201 (Jhr) (Anil Kumar v. State of Jharkhand and Anr.) wherein the petitioner was exempted from surrendering in the similar circumstances of resolution of disputes between the parties and also on the fact that the offence under Section 138 of N.I. Act in which petitioner has been convicted, is com poundable under Section 147 of the Act.
5. Mr. Arvind Kr. Lall, learned Counsel appearing
