9911796707
TMI Blog2018 (11) TMI 499X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner to the complainant/respondent in order to discharge his liability had been dishonoured. The complaint was decided in favour of the complainant/respondent by the learned trial Magistrate and the petitioner was sentenced to undergo simple imprisonment for six months and to pay compensation of Rs. 4,25,000/- to the complainant/respondent. 2. Aggrieved by the judgment of conviction and sentence passed by the learned trial Magistrate on 17.1.2013/5.4.2013, though the petitioner preferred an appeal before the learned Additional Sessions Judge-I, Shimla, H.P., however, the same came to be dismissed vide judgment dated 7.5.2015, constraining the petitioner to file the instant revision petition. 3. Today, when the case was taken up, it i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h 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 on 4th October, 2017, wherein after taking into consideration the entire law on the subject, the Hon'ble Supreme Court has laid down the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 upon society. The decision to continue with the trial in such cases is founded on the overriding element of public interest in punishing p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchan 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 proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idavit, 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 under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 4,25,000/-. 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 Sections 397, 401 and Section 482 of the Code, but even under Section 147 of the Act. 11. In view of the above discussion, it is ordere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
