Madras High Court

M/S.Ice Dreams vs Having Head Office At on 27 October, 2022

                                                                 Crl.O.P.Nos.25789, 25792, 25796 & 25869 of 2022


                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                 DATED: 27.10.2022

                                                       CORAM:

                                  THE HONOURABLE MR. JUSTICE V. SIVAGNANAM

                                    Crl.O.P.Nos.25789, 25792, 25796 & 25869 of 2022

                                  and Crl.MP.Nos.15971, 15967, 15968 & 15966 of 2022

                     1. M/s.ICE DREAMS
                        Rep.by its Partner
                        Mr.Navin Daga,
                        No.154, Burma Colony, 2nd Main road,
                        Industrial Estate, Perungudi,
                        Chennai 600 096.

                     2. Navin Daga
                        Managing Partner & Authorised Signatory
                        ICE DREAMS
                        No.154, Burma Colony, 2nd main road,
                        Industrial Estate, Perungudi,
                        Chennai 600 096.

                     3. Rishi Kumar Chordia
                        Partner
                        ICE DREAMS
                        No.154, Burma Colony, 2nd main road,
                        Industrial Estate, Perungudi
                        Chennai 600 096.                                           ...Petitioners in all
                                                                                              petitions




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                                                                      Crl.O.P.Nos.25789, 25792, 25796 & 25869 of 2022


                                                             Vs.

                     M/s.Kreem Foods Pvt.Ltd.,
                     Rep.by its Directors and Authorised Signatory
                     Mr.K.Dinesh Babu
                     Working as Accounts Officer
                     At Senthamangalam Village,
                     S.V.Chatram Post,
                     Sriperumbudur Taluk,
                     Kanchipuram District.

                     Having Head Office at
                     No.28/3030 Cheruparambath Road,
                     Kadavanthra, Ernakulam,
                     Kerala 682 020.                                                     ... Respondent in

all Petitions

COMMON PRAYER: Criminal Original Petitions are filed under Section 482 Cr.P.C. praying to call for the records in S.T.C.Nos.1114, 1113, 1115 and 1116 of 2019 pending on the file of the learned Judicial Magistrate at Sriperumbudur and quash all further proceedings in the said case in STC.Nos.1113, 1114, 1115 and 1116 of 2019

For Petitioners : Mr.G.Sudhagar in all Petitions

COMMON ORDER

These Criminal Original Petitions have been filed to call for the

records in S.T.C.Nos.1113, 1114, 1115 and 1116 of 2019 pending on the

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.25789, 25792, 25796 & 25869 of 2022

file of the learned Judicial Magistrate at Sriperumbudur and quash the

same.

2. The learned counsel for the petitioners submitted that the

petitioners are facing trial in S.T.C.Nos.1113, 1114, 1115 and 1116 of

2019 before the learned Judicial Magistrate, Sriperumbudur. The

complainant filed a private complaint against the petitioners under

Section 138 of Negotiable Instruments Act for dishonour of cheques

amounting Rs.3,55,600/-. At this stage the petitioners are ready to settle

the matter and repay the cheque amount. This amount was already

offered to the respondent during the Lok Adalat settlement period but the

complainant refused to receive the cheque amount and the complainant is

only particular in prosecuting the case. Under these circumstances, the

petitioners have filed these original petitions to quash the proceedings

against them. In support of his contention, he relied upon the judgment of

the Hon'ble Supreme Court in the case of M/s.Meters and Instruments

Private Limited and another Vs. Kanchan Mehta and the relevant

paragraphs are extracted as below:-

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.25789, 25792, 25796 & 25869 of 2022

"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 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.

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 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

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.25789, 25792, 25796 & 25869 of 2022

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.

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 banks slip 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".

3. Heard the learned counsel for the petitioner and perused the

materials available on record.

https://www.mhc.tn.gov.in/judis Crl.O.P.Nos.25789, 25792, 25796 & 25869 of 2022

4. On a perusal of the records, it is seen that the petitioners are

accused in STC.Nos.1113, 1114, 1115 and 1116 of 2019 on the file of

learned Judicial Magistrate, Sriperumbudur and it is now prosecuted by

the respondent complainant for having committed offence under Section

138 of Negotiable Instruments Act. Now the petitioners/accused are

ready to settle the matter by paying the cheque amount but the

complainant refused to receive the same and he wanted to prosecute the

case.

5. Considering the facts and circumstances of the case and in view