HP HC | Contemnor discharged under S. 138 NI Act because of inability to pay the amount of compensation as already completed the duration of imprisonment

Himachal Pradesh High Court: Sandeep Sharma, J. contemplated the petition filed under Section 12 of Contempt of Courts Act, where the petitioner prayed for punishing the respondent for willful disobedience of judgment passed by the Court.

The factual matrix of the case was that a case was filed against the respondent under Section 138 of Negotiable Instruments Act for dishonor of cheque, for which he was held guilty and the respondent undertook that he will make payments of the entire amount of compensation, after which the Court had compounded the offence and set aside the conviction. Respondent was sentenced for a month and compensation was also levied against him. The aforesaid judgment of conviction was upheld by learned Sessions Judge; subsequently, the respondent approached the Court by way of Criminal Revision under Section 397 CrPC and prayed to set aside judgments of conviction recorded by learned Courts below.

Court in the revision application considered the undertaking given by the respondent that he would pay the amount of compensation before a particular date and also deposited 15% of the cheque amount with the Himachal Pradesh State Legal Services Authority, proceeded to compound the offence and set aside the impugned judgments of conviction and sentence recorded by learned Courts below. Since the respondent failed to honor the undertaking given to Court, complainant had approached the Court in the instant proceedings, seeking appropriate action against the respondent for willful disobedience of judgment.

The respondent had tendered an unconditional apology for the disobedience on his part. It had been categorically stated that on account of non-compliance of the direction issued in the judgment rendered, the respondent had undergone imprisonment for one month. He further submitted that on account of financial constraints he was not in a position to fulfill his undertaking. The counsel for the respondent V.S. Chauhan submitted that the respondent had completed the tenure of his imprisonment. Hence, leniency was sought related to further consequences of default.  He further contended that since the respondent had already suffered for more than one month and appropriate remedy under law, was available to the complainant for the realization of his money, no fruitful purpose would be served in case of action, if any, was taken against the respondent.

The Court, found that in judgment by the Court had ordered that in the event of non-fulfillment of the solemn undertaking furnished by the respondent to the Court, judgment of conviction and sentence would automatically revive and separate proceedings for violation of undertaking would be initiated against the respondent in terms of provisions contained under the Contempt of Courts Act, 1971. But since the respondent, on account of his non-fulfillment of the undertaking, had already undergone imprisonment for one month and the complainant has a separate /specific remedy under Section 421 CrPC, for realization of amount of compensation awarded by learned trial Court, the Court saw no reason to proceed against the respondent in the instant proceedings. Further, it had been specifically stated in the reply that the respondent was not in a position to fulfill the undertaking.

The Court further noted that in Chintala Symala v. Chintala Venkata Satyanarayan Rao, (2008) 10 SCC 711, the Supreme Court had held that “We do not find any ground to modify the quantum of maintenance. However, as the contemnor has expressed his inability to pay the amount of maintenance in terms of the order passed by this Court, we do not consider it appropriate to proceed with the contempt case. At the same time, we consider it just and expedient to recall order.”

Hence, the Court decided to drop the charges on the decision rendered by the Supreme Court. Contempt notice issued to the respondent was discharged.[Dinesh Kumar Nanda v. Ramesh Ranta, 2019 SCC OnLine HP 1348, decided on 27-08-2019]

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