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2014 (2) TMI 343

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....n 138 of Negotiable Instruments Act was dismissed. 3. While dismissing the complaint, the trial court has noticed in the impugned order that the accused respondent herein was summoned under Section 138 of Negotiable Instruments Act after a prima facie case was established against him. On 28.4.2003 an offer was made by the respondent that he would make the entire payment by the next date. But as the payment was not made the Court framed notice under Section 251 Cr.P.C. and the case was adjourned for evidence on 26.8.2003. The trial court then goes on to notice that on the said date i.e. 26.8.2003 the parties compromised the matter and the respondent moved an application for settlement containing some terms and conditions including furnishin....

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....offence under section 138 of the Negotiable Instrument Act is of compoundable nature parties may decide to compound the offence under Section 138 of the Act by way of cheque towards the liability of the accused during the pendency of the complaint, it amounts to compounding of the offence resulting acquittal as he has with open eyes entered into the agreement and accepted the cheques." 5. Learned counsel for the appellant submits that firstly the judgment sought to be relied upon by the trial court in the case of Venktesh (Supra) is not applicable to the facts of this case as no lawful compromise was arrived at between the parties. Counsel further submits that acceptance of the cheque was conditional in nature which is evident from the sta....

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....in the case of Lalit Kumar Sharma and Another v. State of Uttar Pradesh and Another, reported at (2008) 5 SCC 638, more particularly paras 15 to 17, which read as under:            "15. Evidently, therefore, the second cheque was issued in terms of the compromise. It did not create a new liability. As the compromise did not fructify, the same cannot be said to have been issued towards payment of a debt. 16. Ingredients of Section 138 of the Act are as under: (i) that there is a legally enforceable debt; (ii) that the cheque was drawn from the account of the bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and (iii) that the ....

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....d counsel for the parties and considered their rival submissions. The basic facts of this case are not in dispute that the appellant had filed a complaint under Section 138 of the Negotiable Instruments Act. During the pendency of the matter, a cheque in the sum of Rs.9,59,155/- was handed over to the complainant. 10. The submission made by learned counsel for the respondent that the parties had arrived at an amicable settlement and, thus, the trial court has rightly dismissed the complaint is without any force, on account of the fact that the learned Magistrate in its order dated 1.11.2003 has categorically recorded that the matter cannot be compromised and the case was put up for the evidence of the complainant for 21.2.2004. The order d....