TMI Blog2021 (5) TMI 807X X X X Extracts X X X X X X X X Extracts X X X X ..... e business transactions are honored. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are to execute the recovery of cheque amount by showing teeth of penalty loss. This Court has inherent powers under Section 482 of the Code of Criminal Procedure, further supported by Section 147 of the N.I. Act to interfere in this kind of matter where parties have paid the entire money and where the complainant does not object to clear all the proceedings. Given the entirety of the case and judicial precedents, the continuation of these proceedings will not suffice any fruitful purpose whatsoever. This is a fit case where the inherent jurisdiction of the High Court under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rms part of the record. 4. The jurisprudence behind the N.I. Act is that the business transactions are honored. The legislative intention is not to send the people to suffer incarceration because their cheque was bounced. These proceedings are to execute the recovery of cheque amount by showing teeth of penalty loss. 5. In Kaushalya Devi Massand v. Roopkishore Khore, (2011) 4 SCC 593, the Hon'ble Supreme Court held as follows: [11]. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Indian Penal Code or other criminal offences. An offence under Section 138 of the Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e: [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 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 e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry 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 of the accused or any other circumstances. 7. Given the judgment passed by Hon'ble Supreme Court of India in Damodar S. Prabhu v Sayed Babalal, (2010) 5 SCC 663, the law is well settled that when the entire money is paid, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending before the Trial Court i.e., Ld. Additional Chief Judicial Magistrate, Court No. 1, Ghumarwin District Bilaspur, H.P. As such the accused No. 1, (Mythri Projects) is to pay compensation at the rate of 5%, which comes out to be ₹ 1,50,000/-. The petitioner shall deposit aforesaid amount in the account of the concerned HP Legal Aid Authority, on or before 30 June 2021, failing which this entire order, including compounding, shall automatically stand recalled, and this petition shall be posted for hearing on merits. However, in extraordinary circumstances, the petitioner may approach this Court for an extension of time to deposit the compounding fee. Petitioner to file the receipt in the Registry. 13. Based on the compromise, ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
