Mahesh Kumar Vs. Rai Singh and Ors. - (High Court of Himachal Pradesh) (01 Jan 2019)
If cheque amount with assessed cost and interest has been paid, proceedings can be closed even in absence of complainant
The complainant/Respondent No. 1 instituted a complaint under Section 138 of the Negotiable Instruments Act, 1881 ('Act') against the Petitioner on the allegations that, a cheque of Rs. 65,000 handed over by the Petitioner to Respondent No. 1 in order to discharge his liability had been dishonoured. The complaint was decided in favour of Respondent No. 1 by the learned trial Magistrate and the Petitioner was sentenced to undergo simple imprisonment for one month and also directed to pay compensation of Rs. 70,000 to the complainant/Respondent No. 1.
Aggrieved by the judgment of conviction and sentence passed by the learned trial Magistrate, though the Petitioner preferred an appeal before the learned Additional Sessions Judge-, the same came to be dismissed vide judgment constraining the Petitioner to file the instant revision petition. The moot question is whether a compromise, at this stage, can be permitted to be effected between the parties where the Petitioner has been charged under Section 138 of the Act.
Present Court is not powerless in such situation and adequate powers have been conferred upon it not only under sections 397 read with Section 401 or Section 482 of Code of Criminal Procedure, 1973 (CrPC) but also under Section 147 of the Act for accepting the settlement entered into between the parties and to quash the proceedings arising out of the proceedings, which have consequently culminated into a settlement. This power has been conferred to subserve the ends of justice or/and to prevent abuse of the process of any Court. Though, such power is required to be exercised with circumspection and in cases which do not involve heinous and serious offence of mental depravity or offences like murder, rape, dacoity etc.
In a recent judgment of the Hon'ble Supreme Court in Meters and Instruments Private Limited and another versus Kanchan Mehta wherein after taking into consideration the object of introducing Section 138 and other provisions of Chapter XVII in the Act in the year 1988, it was observed that, Offence under Section 138 of the Act is 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 CrPC but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 of CrPC 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.
It is evident from the aforesaid judgment of Supreme Court in Meters and Instruments Private Limited and another versus Kanchan Mehta, this Court after being satisfied that the cheque amount with the assessed cost and interest has been paid, can close the proceedings even in absence of the complainant.
Since, the Petitioner has not only deposited the entire compensation amount, but has also deposited an additional amount of Rs. 20,000 therefore, quashing of the complaint initiated at the instance of complainant/Respondent No. 1 would be a step towards securing the ends of justice and to prevent abuse of process of the Court, especially, when the Petitioner is facing pangs and suffered agony of protracted trial and thereafter appeal/revision for the last more than 5 years and has paid the entire compensation amount.
The impugned substantive sentence of simple imprisonment imposed in this case shall stand modified and substituted in lieu of the compensation amount of Rs. 70,000 and an additional amount of Rs. 20,000 that stands already deposited by the Petitioner before this Court and learned Trial Court. Petition disposed off.
Relevant : Meters and Instruments Private Limited and another versus Kanchan Mehta MANU/SC/1256/2017
Tags : PROCEEDINGS CHEQUE DISHONOUR COMPOUNDING THEREOF