Sandeep Sharma, J. (Oral)

By way of instant application filed under Section 528 of Bharatiya Nagarik Suraksha Sanhita, 2023 read with Section 147 of Negotiable Instruments Act, prayer has been made by the applicant-accused for compounding of offence alleged to have been committed under Section 138 of the Act.

Precisely, the facts of the case as emerge from the record are that non-applicant/respondent/complainant (for short ‘complainant’) filed a complaint under Section 138 of the Negotiable Instruments Act (for short ‘Act’) in the competent court of law, alleging therein that accused approached him to sell the apple crop of his orchards for sum of ₹12,05,000/- and on his request, he sold apple crop of his orchard to him. Complainant alleged that with a view to discharge his liability, accused issued Cheque No.000042 dated 28.09.2017, amounting to ₹5,00,000/- drawn at HDFC Bank, Rampur, however, afore Cheque on its presentation to the Bank concerned, the same was dishonoured with the remarks “Funds Insufficient”. After receipt of aforesaid return memo, complainant served accused with a legal notice, however, since petitioner-accused failed to make the payment good within the time stipulated in the legal notice, respondent/complainant was compelled to initiate proceedings under Section 138 of the Act in the Court of learned Additional Chief Judicial Magistrate, Rampur Bushahr, Distrtict Shimla, Himachal Pradesh.

Learned trial Court on the basis of material adduced on record by the respective parties, vide judgment/order dated 08.07.2019, held the petitioner-accused guilty of having committed offence under Section 138 of the Act and accordingly, convicted and sentenced him, as per the description given hereinabove.

Though, at the first instance, accused preferred an appeal in the Court of learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushahr, District Shimla, Himachal Pradesh, however, same was dismissed vide judgment dated 22.09.2021. Being aggrieved and dissatisfied with the aforesaid judgment passed by learned first appellate court, applicant-accused preferred Criminal Revision No.238 of 2022 in this Court, which also came to be dismissed vide judgment dated 04.04.2023.

Since after passing of aforesaid judgment dated 04.04.2023, applicant-accused compromised the matter with the non-applicant/respondent/complainant, whereby accused has paid the entire amount to the complainant, applicant-accused has approached this Court in the instant application filed under Section 528 of BNSS, praying therein for compounding of the offence under Section 147 of the Act.

Mr. M.S. Katoch, learned counsel representing the respondent, states that complainant has received substantial amount of compensation awarded by learned Court below from the petitioner-accused and in case remaining amount lying deposited with the Registry of this Court is ordered to be released in favour of complainant, he shall have no objection in case the judgments of conviction and sentence passed by the Courts below as well as this Court are quashed and set aside and the petitioner is acquitted of the charge framed against him.

While considering the prayer made in the application, the question which needs to be decided at first instance is that “whether after upholding the judgment of conviction and order of sentence passed by learned court below, this Court can proceed to compound the offence or not?.”

This Court vide judgment passed in Cr.MP No. 1197 of 2017 in Cr. Revision No. 394 of 2015 titled Gulab Singh v. Vidya Sagar Sharma, while relying upon judgment of Hon'ble Apex Court as well as other Constitutional Courts has already held that court, while exercising power under Section 147 of Act can proceed to compound offence even in those cases, where accused stands convicted. Relevant portion of the order passed by this court in order supra is reproduced as under:

“8. Before acceding to aforesaid joint request having been