9911796707
TMI Blog2023 (3) TMI 531X X X X Extracts X X X X X X X X Extracts X X X X ..... s a company incorporated under the Companies Act, 1956, having its registered office situated at 50, Jawahar Lal Neheru Road, Kolkata - 700 071. The petitioner nos. 2 to 5 are the Directors of the petitioner no. 1 company and the petitioner no. 2 is the father of the petitioner no. 3. By a Board Resolution dated 20.02.2019 Shir Manoj Kumar Srivastava of the petitioner no. 1 company, has been authorized to represent the petitioner no. 1 company. That Case No. C-5223 of 2018 was registered on the basis of a petition of complaint filed by the opposite party, therein alleging commission of offences by the petitioners punishable under Section 138 of the Negotiable Instruments Act. The Learned Additional Chief Judicial Magistrate, Bidhannagar, upon receipt of the aforesaid petition of complaint, was pleased to take cognizance of the offence under Section 138 of the Negotiable Instruments Act, 1981, against the accused persons by an order dated 07.12.2018. By an order of even date, the Learned Magistrate took on record the affidavit under Section 145 of the Negotiable Instruments Act, 1881 filed by the representative of the opposite party and examined him on oath, and upon consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... initiated by the opposite party against the petitioner no.1 company, under the Insolvency and Bankruptcy Code, 2016, are pending before the National Company Law Tribunal, Kolkata Bench. It was urged on behalf of the opposite party that if the amount is accepted and the instant prosecution is compounded, the case under the Insolvency and Bankruptcy Code, 2016 pending before the National Company Law Tribunal, Kolkata Bench, will be affected. The opposite party was unwilling to accept the amount of the cheque and instead wished to proceed with the instant case. The Learned Court thereafter held that the reason cited by the opposite party was convincing and satisfying, and in such circumstances, the Learned Court rejected the aforesaid application filed by the petitioners and fixed 17.09.2019 for recording of plea in the impugned proceeding. Subsequently, the original demand draft, as aforesaid, was returned to the petitioner. In the instant case, the opposite party has filed the complaint prior to the expiration of the said period of 15 days from the date of alleged service of the relevant, rectified demand notice on the petitioners. Thus, the instant complaint has been filed at a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpounding of an offence requires consent of both parties, even in absence of such consent, the Hon'ble Court, in the interests of Justice, on being satisfied that the complainant of a dishonoured cheque has been paid the cheque amount, may quash the proceedings and discharge the accused. In the instant case, the Learned Magistrate erred in failing to consider the aforesaid law as expounded by the Hon'ble Supreme Court. The Learned Magistrate by an order dated 18.06.2019, erroneously held that despite the willingness of the petitioner to pay the amount of the dishonoured cheque, in the absence of consent of the opposite party, the proceedings under Section 138 of the Negotiable Instruments Acts, 1881 cannot be closed and the accused cannot be discharged from the said proceedings. Thus in the circumstances, in view of the settled law, upon the amount of the dishonoured cheque being paid to the opposite party, the impugned proceedings are liable to be quashed. The petitioner no. 1 company is ready to pay to the opposite party the amount of the cheque dishonoured, (in respect whereof the present proceeding has been initiated) by the said demand draft. The impugned proceeding is a gros ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay setting the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:- THE GUIDELINES (i) In the circumstances, it is proposed as follows:- (a) That directions can be given that the writ of summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) It the accused does not make an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ishonour of the cheque, according to Section 146. Section 147 makes offences punishable under the Act compoundable. The punishment prescribed under the Act was enhanced from one year to two years, along with other amendments made to Sections 138 to 142 with which we are not concerned in this case." Considering all the materials on record, it is before this court that a deed of settlement between the parties, regarding all their dues has been filed before the NCLT. The matter therein has been withdrawn in accordance with the three settlement agreements with liberty to file appropriate applications for revival of the company petition at stage at which it was left of in case there is default. The petitioner's prayer for payment of the cheque amount has been rejected by the Magistrate. In the present case, the opposite party/complainant has not appeared in spite of due service. Accordingly the order dated 18.06.2019 passed by the Learned Additional Chief Judicial Magistrate, Bidhannagar, North 24 Parganas, in Case No. C 5223 of 2018 is set aside, not being in accordance with law and the matter is remitted to the Learned Magistrate to dispose of the case in view of the settlement ..... X X X X Extracts X X X X X X X X Extracts X X X X
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