Allahabad High Court
Shekhar Sandal Alias Shekhar Chandra vs The State Of U.P. Thru. Addl. Chief Secy. ... on 24 April, 2025
Author: Alok Mathur
Bench: Alok Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Neutral Citation No. - 2025:AHC-LKO:23634
Court No. - 12
Case :- APPLICATION U/S 482 No. - 3360 of 2025
Applicant :- Shekhar Sandal Alias Shekhar Chandra
Opposite Party :- The State Of U.P. Thru. Addl. Chief Secy. Home Lko. And Another
Counsel for Applicant :- Uma Kant Mishra,Ashish Kumar Shukla
Counsel for Opposite Party :- G.A.
Hon'ble Alok Mathur,J.
1. Heard Sri Uma Kant Mishra, learned counsel for the applicant as well as learned Additional Government Advocate on behalf of the State.
2. In light of the order proposed to be passed notice to respondent No.2 is dispensed with.
3. It has been submitted that proceedings under Section 138 of N.I.Act were initiated by opposite party No.2. It is stated that as per the complaint the petitioner had promised to sell out the plot No.752 situated at Shekhupura Colony, area measuring about 43.65 square meters in favour of the complainant by taking a sum of Rs.16 lakhs as consideration and had also executed a sale agreement on 19.12.2018. The complainant had paid Rs. 1 lakh as advance on 19.12.2018 which was credited to the account of the petitioner and the grievance of the complainant was that the petitioner had failed to deliver original documents of the house. To settle the said case the petitioner had given a cheque of Rs.1 lakh vide cheque No.673711 dated 17.1.2019 in discharge of his liability which was presented by the complainant in his bank and was dishonored on account of 'insufficient funds'. It was further submitted that despite the legal notice sent by the complainant the petitioner did not pay the amount and accordingly proceedings of Section 138 N.I.Act were initiated.
4. The petitioner has not appeared before the trial court despite service of summons and it is only when coercive process has been initiated and non bailable warrants have been issued that he has filed the present petition stating that he has returned Rs.40,000/- in cash and submits that in light of the fact that he has returned part of the money the proceedings under Section 138 of N.I.Act cannot be initiated.
5. In support of his submissions he has relied upon the judgment of Hon'ble Supreme Court in the case of Dashrathbhai Trikambhai Patel Vs. Hitesh Mahendrabhai Patel and another, (2023) 1 SCC 578 where in para 33 it has been observed as under:-
"If the endorsed cheque when presented for encashment of the balance amount is dishonored, then the drawee can take recourse to the provisions of Section 138. Thus, when a part payment of the debt is made after the cheque was drawn but before the cheque is encashed, such payment must be endorsed on the cheque under Section 56 of the Act. The cheque cannot be presented for encashment without recording the part payment. If the unendorsed cheque is dishonoured on presentation, the offence under Section 138 would not be attracted since the cheque does not represent a legally enforceable debt at the time of encashment. "
6. When a pointed query has been made to demonstrate as to how part payment has been made we find that the only statement has been made in the petition that Rs.40,000/- has been paid back in cash and submitted that the petitioner does not have any receipt of the same and, therefore, the said transaction cannot be proved by documentary evidence.
7. In light of the above, no judicial cognizance can be taken of the part payment made by the petitioner in absence of any evidence indicating the same at this stage. Accordingly we find that the judgment of the Supreme Court in the case of Dashrathbhai (Supra) is not applicable in the present case.
8. Learned counsel for the petitioner submits that he is ready and willing to settle the said matter with the complainant in terms of Section 147 of N.I. Ac. He submits that under Section 147 the matter can be compounded and the outstanding amount which has remained can be paid to the complainant to which the petitioner is ready and willing.
9. We find no reason as to why the petitioner has not approached the trial court in case he was genuinely and bonafidely willing to compound the said matter under Section 147 of the N.I.Act. It is further noticed that Section 147 of the N.I.Act has been made more beneficial by making guidelines by Supreme Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H. (2010) 5 Supreme Court Cases 663 which is quoted as under:-
"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) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.
(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.
(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount."
10. Accordingly and also considering the fact that the petitioner has avoided summons in appearing before the trial court, we find that interest of justice would suffice in case the petitioner is granted benefit of the judgment of the case of Damodar S. Prabhu (Supra). Accordingly, we impose a cost of Rs.10,000/-on the petitioner for not appearing before the trial court and keeping the matter pending for more than five years. This cost shall be deposited before the trial court along with an application under Section 147 N.I. Act and shall be released in favour of the respondent.
11. In view of the above, the petition is disposed of with liberty to the applicant to appear before the Magistrate and pray for compounding the case in accordance with principles laid down by the Supreme Court in Damodar S. Prabhu vs. Sayed Babalal H., 2010 (5) SCC 663. In case, the applicant appears before the Magistrate within one month from the date through counsel and moves an application seeking to compound the offences, the Magistrate shall dispose of the application in accordance with law bearing in mind the relevant directions in Damodar S. Prabhu (supra).
12. It is made clear that in case the application is not filed within next two weeks and in case the cost is not deposited as imposed by this Court, the benefit of this order shall not be available to the petitioner.
(Alok Mathur, J.)
Order Date :- 24.4.2025
RKM.
