TMI Blog2018 (11) TMI 1397X X X X Extracts X X X X X X X X Extracts X X X X ..... R JUSTICE TARLOK SINGH CHAUHAN, JUDGE This petition takes exception to the order passed by the learned trial Magistrate dated 19.09.2016, whereby the application filed by the petitioner under Section 258 Cr.P.C. in proceedings under Section 138 of the Negotiable Instrument Act (for short the N.I. Act ), came to be dismissed. 2. However, the moot question is whether the provisions of Section 258 Cr.P.C. for stopping all the proceedings are applicable to the proceedings initiated under Section 138 of the N. I. Act. 3. Section 258 Cr.P.C. reads as under:- Power to stop proceedings in certain cases- In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge. 4. The plain reading of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible, i.e. with such deviation as may be necessary for speedy trial in the context. 5. It was on the basis of the aforesaid observation that the Hon ble Supreme Court culled out the following principles:- [18] From the above discussion following aspects emerge: 18.1Offence 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 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. 18.2 The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary taking into account the fact that compensation under Section 357(3) Cr.P.C. with sentence of less than one year will not be adequate, having regard to the amount of cheque, conduct of the accused and other circumstances. 7. Shri K. S. Kanwar, learned counsel for the petitioner, would vehemently argue that the Hon ble Supreme Court itself has held that Section 258 Cr.P.C. will be applicable to proceeding initiated under Section 138 of the N.I. Act and, therefore, the Court below could not have rejected the application so filed by the petitioner. 8. Apparently, the application filed by the petitioner before the learned Court below under Section 258 Cr.P.C. was not on the ground that the cheque amount together with interest and cost as assessed by the Court had been paid, therefore, the Court should have closed the proceedings in exercise of power under Section 143 of the Act, read with Section 258 Cr.P.C. Rather the allegations in the application were that the complaint itself was not maintainable as there was no legal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (supra) and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows:- The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol.26, para 573) The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal s duty to spell out with difficulty a ratio decidendi in order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. 18. The Hon ble Supreme Court in Som Mittal v. Government of Karnataka (2008) 3 SCC 574 observed that judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasizing a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation ( See: Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited AIR 2014 SC 525 .) 19. Moreover, it is not the Section but only the principles of Section 258 Cr.P.C. that have been held to be applicable to complaint cases that too only to the extent as enunciated by the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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