D.K.SINHA, J. - (1.) THE instant Cr Revision is directed against the order dated 15.4.2009 passed by the Sessions Judge, Latehar in Cr. Appeal No. 36 of 2008 by which the judgment of conviction and order of sentence/fine recorded by the S.D.J.M., Latehar in Complaint Case No. 75 of 2008 corresponding to T.R. No. 632 of 2008 on 1.12.2008 against the petitioner was affirmed.
(2.) THE prosecution story in short was that the complainant O.P. No. 2 in his complaint dated 24.4.2008 alleged that the petitioner had issued a cheque in his name on 15.3.2008 for a sum of Rs. 1,52,000/- drawn on State Bank of India, Chandwa Branch for discharging his debt. When the cheque was produced by the complainant-O.P. No. 2 on 27.3.2008 for encashment, the same was returned with the endorsement 'insufficient fund' by the Banker. Thereafter, legal notice was served upon the petitioner on 2.4.2008 and the complainant-O.P. No. 2 received his reply thereof on 21.4.2008. Having been dissatisfied with the reply of the petitioner-accused, the complainant-O.P. No. 2 filed a complaint under Section 138 of the Negotiable Instrument Act against him. Having been satisfied with the materials collected during enquiry, the Court summoned the accused-petitioner and on examination of the witnesses after framing of charge and also appreciating the defence evidence adduced on behalf of the petition, the Court held that the complainant successfully established that the cheque of Rs. 1,52,000/- which was issued by the petitioner in favour of the complainant-O.P. No. 2 to discharge his liability of debt was re- turned by the Bank with the endorsement 'insufficient of fund' and thereby the petitioner was held guilty for the charge he stood for under Section 138 of the Negotiable Instrument Act and accordingly, he was sentenced to undergo rigorous imprisonment of three months and fine of Rs. 2 lakhs to be paid to the complainant-O.P. No. 2 to meet the ends of justice. The terminology 'fine' used by the Trial Magistrate in the operative portion of his order was modified in appeal by the Sessions Judge as 'compensation' and the judgment and order re corded against the petitioner-accused was affirmed by dismissing the appeal. During pendency of this Cr. Revision a supplementary affidavit was filed on behalf of the petitioner on 24.7.2009 stating therein that the parties have settled their dispute and the entire compensation amount of the tune of Rs. 2 lakhs has been paid by the petitioner to the complainant-O.P. 2. It was further contended that a joint compromise petition under Section 147 of the Negotiable Instrument Act was filed before the Trial Magistrate on 7.7.2009 that they have already entered into compromise and no dues existed against the petitioner wherein the complainant-O.P. No. 2 accepted that he had already received a sum of Rs. 2 lakhs in support whereof an affidavit has been filed in the instant Criminal Revision on 10.8.2009 which was duly signed by the complainant-O.P. No. 2 which is interlocutory application No. 1618 of 2009. It was requested in the said Interlocutory Application that the Cr Revision may be allowed on the basis of the compromise as the dispute was resolved between the parties and he had no longer grudge against the petitioner.
(3.) LEARNED counsel appearing for the petitioner submitted that the offence under Section 138 of the Negotiable Instrument Act is compoundable under Section 147 of the said Act and in catena of decisions, this Court has allowed the compromise by setting aside the sentence of imprisonment only by allowing compensation to the creditor.;