Sukomal Maiti vs Pearson Pharmaceuticals And Anr ...
2024 Latest Caselaw 1584 Raj

Citation : 2024 Latest Caselaw 1584 Raj
Judgement Date : 16 February, 2024

Rajasthan High Court - Jodhpur

Sukomal Maiti vs Pearson Pharmaceuticals And Anr ... on 16 February, 2024

Author: Madan Gopal Vyas

Bench: Madan Gopal Vyas

[2024:RJ-JD:8423]

      HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                       JODHPUR
                S.B. Criminal Misc(Pet.) No. 1001/2018

Sukomal        Maiti,      Through           Pharma          Marketing      Western
Pharmaceuticals, 42, South Park, Kolkatta.
                                                                       ----Petitioner
                                       Versus
1.       Pearson Pharmaceuticals Through Its Proprietor Kesarimal
         Shah S/o Chunni Lal Shah, Dahod Road, Banswara Raj.
2.       State Of Rajasthan Through P.p.
                                                                    ----Respondents


For Petitioner(s)            :     Mr. Falgun Buch
For Respondent(s)            :     Mr. Mahipal Bishnoi, PP



           HON'BLE MR. JUSTICE MADAN GOPAL VYAS

Judgment

16/02/2024

The present criminal miscellaneous petition under Section

482 of CrPC has been preferred by the petitioner for quashing of

the Criminal Case No. 1098/2016 pending before the learned

Additional Judicial Magistrate (First Class), Banswara (hereinafter

referred to as 'the learned trial Court') as well as the orders

passed therein, with further prayer that respondent may be

directed to accept the demand draft of Rs. 10,000/- and withdraw

his complaint.

2. Learned counsel appearing for the petitioner submits that the

petitioner was served with the summons issued by the Court of

Additional Judicial Magistrate (First Class), Banswara, whereby he

was directed to remain present before the learned trial Court in

relation to Case No. 1098/2016. It is submitted that since the

petitioner was living at Kolkata, he travelled to Banswara to attend

[2024:RJ-JD:8423] (2 of 4) [CRLMP-1001/2018]

the proceedings at learned trial Court and when the petitioner

appeared before the learned trial Court, he came to know for the

first time that the respondent has preferred a complaint under

Section 138 of the Negotiable Instruments Act against the

petitioner. It is submitted that in the complaint, it was alleged that

on 14.11.2007, the petitioner handed over a cheque of Rs.

10,000/- to the respondent, but the same could not be honored

and was returned vide return memo stating "Account Closed".

Thereafter, the petitioner approached the learned trial Court and

preferred an application along with a Demand Draft of Rs.

10,000/- to be handed over to the respondent, so that the

proceedings initiated against the petitioner for the offence under

Section 138 of the Negotiable Instruments Act as well as the

Criminal Case No. 1098/2016 and orders passed therein may be

quashed and set aside but the respondent refused to accept the

Demand Draft. In support of his contentions, learned counsel for

the petitioner has relied upon the judgment of Hon'ble Supreme

Court in the case of M/s. Meters and Instruments Pvt. Ltd. &

Anr. Vs. Kanchan Mehta (Criminal Appeal No. 1731 of

2017) decided on 05.10.2017. Therefore, it is submitted that the

present criminal miscellaneous petition may be allowed.

3. Despite service, nobody appeared on behalf of the

respondent-complainant.

4. Heard learned counsel for the petitioner and perused the

material available on record.

5. In the complaint filed under Section 138 of Negotiable

Instruments Act, though the respondent has claimed that the total

outstanding amount is Rs. 4,80,164.90/-. However, he has

[2024:RJ-JD:8423] (3 of 4) [CRLMP-1001/2018]

preferred the complaint that the cheque of Rs. 10,000/- could not

be encashed and was returned vide the return memo stating

"Account Closed". When the petitioner came to know about the

said proceedings, he preferred an application on 24.04.2017 and

offered the respondent a Demand Draft of Rs. 10,000/-, so as to

get the criminal complaint dismissed. But, the respondent refused

to take the Demand Draft.

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

Instruments Pvt. Ltd. (supra)in para No. 18 hold as under:

"(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 interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

....."

(emphasis supplied)

[2024:RJ-JD:8423] (4 of 4) [CRLMP-1001/2018]

7. In view of the above, the present criminal petition is

disposed of with a direction to the learned trial Court to decide the

application (Annexure-3) submitted by the petitioner in

accordance with the ratio laid down by the Hon'ble Supreme Court

in the case of M/s. Meters and Instruments Pvt. Ltd. (supra).

8. The stay petition also stands disposed of accordingly.

(MADAN GOPAL VYAS),J 377-manila/-