Gujarat High Court

Yogeshchandra Dharamprakash ... vs State Of Gujarat on 24 February, 2022

Bench: Vipul M. Pancholi

     R/SCR.A/1213/2022                                       ORDER DATED: 24/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

           R/SPECIAL CRIMINAL APPLICATION NO. 1213 of 2022

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               YOGESHCHANDRA DHARAMPRAKASH PANDEY
                              Versus
                        STATE OF GUJARAT
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Appearance:
MR RN MAJMUDAR, MR NK MAJMUDAR(430) for the Applicant(s) No. 1
for the Respondent(s) No. 2
MR LB DABHI, PUBLIC PROSECUTOR for the Respondent(s) No. 1
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 CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                                 Date : 24/02/2022

                                   ORAL ORDER

1. This petition is filed under Article 227 of the Constitution of India, wherein, the petitioner has challenged the order dated 17.01.2022, passed by the learned Additional Civil Judge & J.M.F.C., Gir-Somnath (in brief, 'the trial Court'), in the application, Exhibit- 39 in Criminal Case No. 232 of 2016.

2. Heard, learned Advocate, Mr. R.N. Majmudar, with learned Advocate, Mr. N.K. Majmudar, appearing for the petitioner and learned APP, Mr. L.B. Dabhi, for the Respondent- State.

3. Learned Advocate, Mr. Majmudar, appearing for the petitioner submitted that the

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original complainant-Respondent No.2, herein, had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, 'NI Act'), being Criminal Case No. 232 of 2016, before the trial Court concerned at Veraval.

3.1 It was submitted that the trial Court vide order dated 07.04.2021, convicted the petitioner and sentenced him to undergo simple imprisonment for the period of six months and to pay fine of Rs.4,00,000/-, as per Section 357(3) of the Code of Criminal Procedure, 1973 (for short, 'the Code'). A copy of the order dated 07.04.2021 is placed on record at Page 41 of the compilation.

3.2 It was further submitted that the present petitioner had challenged the order dated 07.04.2021 by filing Criminal Appeal No. 15 of 2021 before the Sessions / Appellate Court.

3.3 It was submitted that the concerned Sessions / Appellate Court vide order dated 27.12.2021 allowed the said appeal by quashing and setting aside the order of conviction dated 07.04.2021, passed by the trial Court and remanded the matter back to the concerned trial Court. A copy of the said order is produced at page-52 of the compilation.

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3.4 At this stage, learned Advocate for the petitioner submitted that, in the meantime, the petitioner had deposited Rs.4,00,000/-, i.e. the amount of the cheque, on 17.08.2021. A copy of the receipt issued by the concerned Court is produced at Page-66 of the compilation.

3.5 Learned Advocate, Mr. Majmudar, thereafter, submitted that after the matter was remanded back to the concerned trial Court, the petitioner filed application Exhibit-39 before the trial Court and requested that, in view of the decision of the Apex Court in the case of M/S. METERS AND INSTRUMENTS PVT. LTD. VS. KANCHAN MEHTA' in Criminal Appeal No. 1731 of 2017, since, the cheque amount has already been deposited, the order of discharge under Section 258 of the Code be passed in favour of the petitioner.

3.6 However, by passing the impugned order, the concerned trial Court rejected the said application and therefore, the petitioner has preferred the present petition under Article 227 of the Constitution of India.

4. Learned Advocate, Mr. Majmudar, assailed the impugned order, mainly on the ground that the

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petitioner has deposited the amount of cheque, i.e. Rs.4,00,000/- before the concerned trial Court and therefore the trial Court is required to pass an order for discharge under Section 258 of the Code, in view of the decision rendered by the Apex Court in 'M/S. METERS AND INSTRUMENTS PVT. LTD.' (Supra).

4.1 Learned Advocate, Mr. Majmudar, therefore, urged that the impugned order passed by the trial Court be quashed and set aside.

5. On the other hand, learned APP, Mr. Dabhi, appearing for the Respondent-State opposed this petition and submitted that the concerned trial Court has placed reliance on the subsequent decision of the Apex Court in Suo Motu Writ- petition being Criminal Appeal No. 2 of 2020, captioned as "Expeditious Trial Of Cases Under Section 138 Of N.I. Act, 1881", rendered on 16.04.2021 and the concerned Trial Court has specifically referred to Paragraph-24 of the said decision, wherein, it has been held by the larger Bench of the Supreme Court that Section 258 of the Code is not applicable to the proceedings under Section 138 of the NI Act and the findings to the contrary in M/S. METERS AND INSTRUMENTS PVT. LTD. VS. KANCHAN MEHTA' (Supra) do not lay down the correct law.

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5.1 Thus, after placing reliance upon the decision rendered by the larger Bench of the Apex Court, when the trial Court has rejected the application Exhibit-39, this Court may not interfere with the impugned order.

6. Having heard the learned Advocates for the parties and having perused the material placed on record, it emerges that the present petitioner is an accused in the complaint filed by Respondent No.2-original complainant under Section 138 of the NI Act.

6.1 It is pertinent to note at this stage that the said complaint was filed by Respondent No.2-original complainant in the year 2016 and if, the said complaint is seen, it reveals that prior to the filing of the said complaint, the complainant had issued statutory notice to the present petitioner-accused and the said notice was duly served on the petitioner at his residential address. But, the petitioner neither gave any reply to the said notice nor did he paid the cheque amount back and therefore the complainant filed the complaint before the trial Court.

6.2 At this stage, it is pertinent to note

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that the concerned trial Court had issued summons to the petitioner at his residential address and subsequently, bailable warrant was also issued to the petitioner and if, the order of the trial Court is seen minutely, it reveals that wife of the petitioner was present at the residence and she had also given a statement. Therefore, non- bailable warrant was also issued upon the petitioner. However, the petitioner did not remain present before the concerned trial Court and therefore, the trial Court proceeded with the trial and after a period of five years from the date of the filing of the application / complaint, passed the order dated 07.04.2021, whereby, the present petitioner is convicted for the offence under Section 138 of the NI Act.

6.2.1 It is true that the petitioner had, thereafter, filed appeal before the Sessions / Appellate Court being Criminal Appeal No. 15 of 2021, where, the Sessions / Appellate Court quashed and set aside the order of the trial Court vide order dated 27.12.2021 and remanded the matter to the trial Court.

6.3 At this stage, the conduct of the petitioner is also required to be taken into consideration by this Court.

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6.3.1 It is the case of the petitioner that the trial Court proceeded with the matter ex parte and the petitioner was not aware about the pendency of the complaint filed under Section 138 of the NI Act by Respondent No.2 against him before the concerned trial Court and on the other hand, immediately after the order of conviction was passed, within the period of two months, the petitioner preferred appeal before the Appellate / Sessions Court.

6.3.2 In the application Exhibit-39 filed before the concerned trial Court, after the matter was remanded by the appellate Court, the petitioner had only stated that he has deposited Rs.4,00,000/- before the trial Court on 17.08.2021 and therefore, he should be discharged, as per the provisions of Section 258 of the Code, as he had already deposited the principal / cheque amount.

6.3.3 If, the said application is carefully examined, it reveals that the petitioner has not shown any willingness to pay / deposit the amount of interest and costs.

6.4 In this background, if, the decision of the Apex Court in 'M/S. METERS AND INSTRUMENTS PVT. LTD.' (Supra), relied on by the learned

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Advocate for the petitioner, is seen, the Apex Court has specifically observed as under in Paragraphs-18 and 19 thereof;

"18. From the above discussion following aspects emerge:

i) Offence under Section 138 of the NI 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.

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.

ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to

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appropriate compensation as may be found acceptable to the parties or the Court.

iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interest of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to ward suitable compensation with default sentence under Section 64 IPC 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 requried in all cases.

v) Since evidence of the complainant can be given on affidavit, subject to the

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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

Cr.P.C.. The scheme is to follow summary procedure except where exercise of power

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.

19. In view of the above, we hold that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C. As already observed, normal rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where

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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."

6.5 Thus, even from the aforesaid observations made by the Hon'ble Supreme Court, it is clear that, if, the Court is satisfied that the complainant is duly compensated by payment of amount of cheque, interest and costs, as assessed by the Court, by the specific date, it is the discretion of the concerned Court to discharge the accused.

6.6 Keeping in mind the aforesaid decision of the Apex Court, if, the facts of this case are carefully seen, it is not the case of the petitioner that he has shown willingness to pay interest for the period of more than six years and costs to the complaint-Respondent No.2. However, as stated above, it is the discretion of the Court, whether to accept such request of the accused or not, if the same is made, after the complainant is duly compensated.

6.7 Even otherwise, pursuant to the decision in 'M/S. METERS AND INSTRUMENTS PVT. LTD.'

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(Supra), the Supreme Court has rendered another decision on 16.04.2021 in Suo Motu Writ Petition (Criminal) No. 2 of 2020, wherein, the Supreme Court has observed as under in Paragraph-24 thereof;

"24. The upshot of the above discussion leads us to the following conclusions:

1) The High Courts are requested to issue practice directions to the Magistrates to record reasons before converting trial of complaints under Section 138 of the Act from summary trial to summons trial.

2) Inquiry shall be conducted on receipt of complaints under Section 138 of the Act to arrive at sufficient grounds to proceed against the accused, when such accused resides beyond the territorial jurisdiction of the court.


                3)     For    the       conduct      of       inquiry           under
                Section       202      of     the    Code,         evidence           of
                witnesses         on    behalf      of     the      complainant
                shall        be     permitted        to       be       taken          on
                affidavit.             In      suitable           cases,            the
                Magistrate         can      restrict       the       inquiry          to

examination of documents without insisting for examination of witnesses.

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4) We recommend that suitable amendments be made to the Act for provision of one trial against a person for multiple offences under Section 138 of the Act committed within a period of 12 months, notwithstanding the restriction in Section 219 of the Code.

5) The High Courts are requested to issue practice directions to the Trial Courts to treat service of summons in one complaint under Section 138 forming part of a transaction, as deemed service in respect of all the complaints filed before the same court relating to dishonour of cheques issued as part of the said transaction.

6) Judgments of this Court in Adalat Prasad (supra) and Subramanium Sethuraman (supra) have interpreted the law correctly and we reiterate that there is no inherent power of Trial Courts to review or recall the issue of summons. This does not affect the power of the Trial Court under Section 322 of the Code to revisit the order of issue of process in case it is brought to the court's notice that it lacks jurisdiction to try the complaint.

7) Section 258 of the Code is not applicable to complaints under Section 138

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of the Act and findings to the contrary in Meters and Instruments (supra) do not lay down correct law. To conclusively deal with this aspect, amendment to the Act empowering the Trial Courts to reconsider/ recall summons in respect of complaints under Section 138 shall be considered by the Committee constituted by an order of this Court dated 10.03.2021.

8) All other points, which have been raised by the Amicus Curiae in their preliminary report and written submissions and not considered herein, shall be the subject matter of deliberation by the aforementioned Committee. Any other issue relating to expeditious disposal of complaints under Section 138 of the Act shall also be considered by the Committee."

6.8 If, the aforesaid decision rendered by the Supreme Court dated 16.04.2021 is carefully perused, it reveals that the Supreme Court has specifically held that the provisions of Section 258 of the Code are not applicable to the complaint filed under Section 138 of the NI Act and the findings to the contrary recorded in 'M/S. METERS AND INSTRUMENTS PVT. LTD.' (Supra) do not lay down correct law.

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6.9 Thus, the decision upon which the

reliance is placed on by the learned Advocate for

the petitioner is misconceived.

6.10 At this stage, it is required to be

noted that, though, the decision of the Apex

Court in Suo Motu Writ Petition (Criminal) No. 2

of 2020 is specifically referred by the trial

Court in the impugned order dated 17.01.2022,

learned Advocate for the petitioner did not

produce the same before this Court and instead,

the learned Advocate for the petitioner has