Tarlok Singh Chauhan, J. - The parties have no objection in case the revision petition is disposed of in terms of the undertaking furnished by the petitioner along with Cr.M.P. No. 770 of 2019 wherein it is stated by the petitioner that he has already deposited a sum of Rs.50,000/- in the Court of learned Additional Chief Judicial Magistrate, Rampur Bushehar and remaining amount of Rs.50,000/- shall be paid by him to respondent No.1 on or before 20th June, 2019.

2. In this view of the matter, learned counsel for the petitioner prays that the case be compounded in view of the very recent judgment of the Honble Supreme Court in Bhangu Trading Co. and another versus Surjit Singh (dead) through LRs, Criminal Appeal Nos. 808 and 809 of 2018 decided on 02.07.2018 and in terms of the subsequent judgment in N.P. Murugesan versus C. Krishnamurthy, Criminal Appeal No.818 of 2018, decided on 04.07.2018.

3. It would be noticed that in the judgments referred to above, on the payment of the outstanding amount, the Honble Supreme Court had compounded the cases by setting aside the convictions.

4. Now, the moot question is whether in absence of the complainant, such a course can be adopted. This question is no longer res integra in view of the judgment rendered by the Honble Supreme Court in M/s. Meters and Instruments Private Limited and another versus Kanchan Mehta, (2017) AIR SC 4594 wherein after taking into consideration the entire law on the subject, the Honble Supreme Court specifically held that even though compounding requires consent of both parties, however, in absence of such consent, the Court, in interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused, as is evident from para-18 of the judgment which reads thus:-

"18. From the above discussion following aspects emerge:

i) Offence under Section 138 of theis primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.

iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

iv) Procedure for trial of cases under Chapter XVII of the has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.

v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the banks slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances."

5. Thus, taking into consideration all the attending facts and circumstances as also the law laid down by the Honble Supreme Court in Bhangu Trading Co., N.P. Murugesan and Kanchan Mehta cases (supra), I am of the view that for doing complete justice, the whole litigation should be given a quietus.

6. Consequently, the judgments of conviction and sentence passed by the learned Additional Chief Judicial Magistrate, Rampur Bushehar, District Shimla, on 31.03.2017, in Case No. 54-3 of 2016 and as affirmed by the learned Sessions Judge, Kinnaur Sessions Division at Rampur Bushehar, District Shimla, on 09.07.2018, in Criminal Appeal No.35 of 2017, are ordered to be set aside. The petitioner is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act.

7. However, it is made clear that in case the petitioner fails to adhere to the undertaking so furnished by him before this Court, then in addition to any other action, which may be taken against the petitioner, he shall also be liable for being prosecuted and punished under the Contempt of Courts Act and the judgments of conviction and sentence as passed by the learned Courts below, shall automatically revive.

8. The amount of Rs.50,000/- lying in deposit before the learned trial Court is ordered to be released in favour of respondent No.1 on his furnishing his bank account to the concerned court.

9. That apart, it is also made clear that since the Court is deciding the instant lis on the basis of the undertaking given by the petitioner, it shall always be open to respondent No.1 to approach this Court for redressal of his grievance, if still aggrieved.

10. The petition is disposed of in the aforesaid terms, so also the pending application, if any.

11. The Registry is directed to send a copy of this judgment to respondent No.1 on the address given in the memo of parties.

12. For compliance of the judgment, the revision petition be listed on 24.06.2019.

Final Result : Disposed