9911796707
TMI Blog2018 (11) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... Act (for short 'Act') against the petitioner on the allegations that in order to liquidate the overdue amount, the petitioner issued a cheque bearing No.120941 for a sum of Rs. 2,30,000/- on 7.2.2012 to the complainant/respondent No.1-Bank. But the said cheque was dishonoured by the bank on its presentation on the ground of 'insufficient funds'. The complaint was decided in favour of respondent No.1/complainant by the learned trial Magistrate and the petitioner was sentenced to undergo simple imprisonment for a period of nine months and to pay a compensation of Rs. 2,70,000/- to the complainant. 2. Aggrieved by the judgment of conviction and sentence passed by the learned trial Magistrate on 9.12.2014, the petitioner preferred an appeal b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettlement. 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. 5. The moot question is whether the Court in such like cases can set aside the judgments of conviction and sentence where the petitioner has been charged under Section 138 of the Act. This question need not detain this Court any longer in view of the three Judges Bench decision of the Hon'ble Supreme Court in Parbatbhai Aahir @ Parbatbhai and others versus State of Gujarat and another, Criminal Appeal No. 1723 of 2017, decided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether a complaint or First Information Report should be quashed on the ground that the offender and victim have settled the dispute, revolves ultimately on the facts and circumstances of each case and no exhaustive elaboration of principles can be formulated; (vi) In the exercise of the power under Section 482 and while dealing with a plea that the dispute has been settled, the High Court must have due regard to the nature and gravity of the offence. Heinous and serious offences involving mental depravity or offences such as murder, rape and dacoity cannot appropriately be quashed though the victim or the family of the victim have settled the dispute. Such offences are, truly speaking, not private in nature but have a serious impact upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to make note of another recent judgment of the Hon'ble Supreme Court in Meters and Instruments Private Limited and another versus Kanchan Mehta (2018) 1 SCC 560 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 as under:- "18. From the above discussion following aspects emerge: 18.1. 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 Cr.P.C . but with such variation as may be appropriate to pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prison sentence of more than one year may not be required in all cases. 18.5. Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, 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 three years and has deposited the entire compensation amount of Rs. 2,70,000/-. 10. Thus, taking holistic view of the matter and further taking into consideration all the attending facts and circumstances as also the law laid down by the Hon'ble Supreme Court in Parbatbhai Aahir, Kanchan Mehta, Bhangu Trading Co., and N.P. Murugesan cases (supra), I find this to be a fit case to exercise the powers not only under S ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
