Himachal Pradesh High Court
Unknown vs Kanchan Mehta Reported In (2018)1 ... on 2 August, 2021
Bench: Vivek Singh Thakur
.
Cr. Revision No. 189 of 2019
02.08.2021 Present: Mr. B.L. Soni, Advocate for the petitioner.
Mr. Maan Singh, Advocate for the respondent, through
Video Conferencing.
Learned counsel for the petitioner, referring judgment of
the Supreme Court in Meters and Instruments Private Limited and
another vs. Kanchan Mehta reported in (2018)1 SCC 560, has
submitted that petitioner has no objection for release of amount of
compensation to respondent for compounding the case without
adjudicating the criminal revision on merits.
Learned counsel for respondent has referred the same
judgment along with judgment JIK Industries Limited and others vs.
Amarlal V. Jumani and another reported in (2012)3 SCC 235 and
submits that without consent of complainant the case under Section 138
of Negotiable Instrument Act cannot be compounded.
The judgment in JIK's case has been noticed in Meters
and Instruments's case and thereafter, it has been concluded by the
Supreme Court in later judgment as under:-
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 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 appropriate compensation as may be found
acceptable to the parties or the Court.
18.3 Though compounding requires consent of both parties,
even in absence of such consent, the Court, in the interests of
justice, on being satisfied that the complainant has been duly
compensated, can in its discretion close the proceedings and
discharge the accused.
18.4 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 award 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 required in all cases.
18.5 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 dishonor 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 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.
Therefore, the conclusion arrived at by the Supreme Court
in later judgment is to be taken into consideration.
With aforesaid observations, learned counsel for parties
are directed to assist the Court on next date of hearing with complete
and current instructions from their respective clinets.
List on 12th August, 2021.
August 02, 2021 (Vivek Singh Thakur)
(ms) Judge
