9911796707
TMI Blog2020 (3) TMI 1403X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the judgments referred to by the counsel, observed that compounding of the offence under Section 138 of the Negotiable Instruments Act (for short `the Act'), cannot be allowed without the consent of the complainant. While issuing notice of motion, this Court on 25.4.2012 passed the following order:- "Learned counsel for the petitioner, inter-alia, contends that application of the petitioner has been dismissed in view of the ratio of judgment in JIK Industries Ltd. & Others Vs. Amarlal Vs. Jumani and another, 2012(1) RCR (Criminal) 822, whereas judgment in the case of Damodar S. Prabhu Vs.Sayed Babalal H., 2010(2) RCR (Criminal) 851, is applicable in the case of the petitioner as the petitioner was ready to make payment of the amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R (SC) 4594, it is contended that the offence under Section 138 of the Act, can be compounded even in the absence of the consent of the complainant. In the said judgment, the Hon'ble Apex Court, while discussing its earlier judgments in Damodar S. Prabhu (supra) and JIK Industries (supa), has held that where the cheque amount is paid by the complainant, the Court is entitled to close the proceedings. The relevant extracts from the judgment would read as under:- "18. From the above discussion following aspects emerge: i) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with default sentence under Section 64 I.P.C. and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. v) 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 dishonour 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd to the cheque amount and interest/cost, by a specified date, the accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant. If the accused complies with such summons and informs the Court and the complainant by e-mail, the Court can ascertain the objection, if any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case. In such a situation, the accused's presence can be required, unless the presence is otherwise exempted subject to such conditions as may be considered appropriate. The accused, who wants to contest the case, must be required to disclose specific defence for such contest. It is open to the Court to ask specific ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Accused on bail with counsel. -.- Today the case was fixed for defence evidence. The counsel for the accused today produced the certified copy of the order passed by Hon'ble High Court dated 6.8.2012 where the proceeding of this case, have been stayed and the amount of Rs.1,52,500/- has already been deposited by the accused as per the directions of the Hon'ble High Court. Now the present case is adjourned to 22.12.2012 for awaiting further orders of Hon'ble High Court." From the report, it is clear that the petitioner has complied with the interim order passed by this Court on 6.8.2012 and the same is also in the knowledge of respondent-Balwant Singh. After hearing the learned counsel for the parties and having gone through the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
