| Headnote |
Negotiable Instruments Act, 1881:ss. 138, 147 - Compounding" the offence under s. 138 on payment of cheque amount and in alternative for exemption from·personal appearance - Permissibility - Question is how the proceedings for offence under s. 138 can be regulated where accused is willing to deposit the cheque amount - Held: Where the cheque amount with interest and cost as assessed by the Court is paid by aspecified date, the Court is entitled to close the proceedings inexercise of its powers under s.143 of the Act read with s.258 Cr.P.C.- The normal rule for trial of cases under Chapter XV/l of the Actis to follow the summary procedure and the summons trial procedurecan be followed where sentence exceeding one year may be necessary taking into account the fact that compensation unders.357(3) Cr.P.C. with sentence of less than one year will not beadequate, having regard to the amount of cheque, conduct of theaccused and other circumstances - !11 every summon:1-, issued to theaccused, it may be indicated that if the accused deposits the specifiedamount, which should be assessed by the Court having regard tothe cheque amount and interest/cost, by a specified date, the accusedneed not appear unless required and proceedings may be closedsubject to any valid objection of the complainant.s. 138 - Object of legislation - Held: The object of introducings. 138 and other provisions of Chapter XVII in the Act in the year 1988 was to enhance the acceptability of cheques in the settlementof liabilities - The drawer of cheque is made liable to prosecution011 dishonour of cheque with safeguards to prevent harassment ofhonest drawers - The object of the provision is both punitive aswell as compensatory - The intention of the provision is to ensureH that the complainant received the amount of cheque by way of compensation - Though proceedings under s.138 could not betreated as civil suits for recovery, the scheme of the provision,providing for punishment with imprisonment or with fine which couldextend to twice the amount of the cheque or to the both, makes theintention of law clear - The complainant could be given not onlythe cheque amount but double the amount so as to cover interestand costs. s.138 - Affidavit evidence - Reliability of - Held: Sinceevidence of the complaint can be given 011 affidavit, subject to theCourt summoning tlze person giving affidavit and examining hi111and the bank'.~ slip being prima facie evidence of the dishonour of cheque, it is unnecessary for the Magistrate to record any furtherpreliminary evidence - Such affidavit evidence can be read asevidence at all stages of trial or other proceedings - The manner ofexamination of the person giving affidavit can be as per s.264C P. C. - The scheme is to follow summary procedure except' whereexercise of power under second proviso to s.143 becomes necessary, Dwhere sentence of one year may have to be awarded andcompensation under s.357( 3) is considered inadequate, havingregard to the amount of the cheque, the financial capacity); and theconduct of the accused or any other circumstances.Criminal law: Compounding of offence .,... Held: Though Ecompounding requires consent of both the ,parties~ even in absenceof such consent, the Court, in the interests of justice, on beingsatisfied that the complainant has been duly cooperated, can in ·its discretion close the proceedings and discharge accused.Code of Criminal Procedure, 1973:s.357(/)(b) - Scope of, in case of cheque dishonour cases -Held: s.357( l)(b) provides for payment of compensation for theloss caused by the offence out of the ji'ne - Where fine is not imposed,compensation can be awarded under s.357(3) to the person whosuffered loss - Sentence in default can also be imposed - The object 0of the provision is not merely penal but to make the accused honourthe negotiable instruments - In view of the above scheme, the accusedcould make an application for compounding at the first or secondhearing in which case the Court ought to allow the same - lf such ·application is made later, the accused was required to pay higheramount towards cost etc. - Even if the payment of the cheque amount, cheque, it is unnecessary for the Magistrate to record any furtherpreliminary evidence - Such affidavit evidence can be read asevidence at all stages of trial or other proceedings - The manner ofexamination of the person giving affidavit can be as per s.264Cr: P. C. - The scheme is to follow summary procedure except' whereexercise of power under second proviso to s.143 becomes necessary, Dwhere sentence of one year may have to be awarded andcompensation under s.357( 3) is considered inadequate, havingregard to the amount of the cheque, the financial capacity); and theconduct of the accused or any other circumstances.Criminal law: Compounding of offence .,... Held: Though Ecompounding requires consent of both the ,parties~ even in absenceof such consent, the Court, in the interests of justice, on beingsatisfied that the complainant has been duly co111penrnted, can in ·its discretion close the proceedings and discharge the accused.Code of Criminal Procedure, 1973:s.357(/)(b) - Scope of, in case of cheque dishonour cases -Held: s.357( l)(b) provides for payment of compensation for theloss caused by the offence out of the ji'ne - Where fine is not imposed,compensation can be awarded under s.357(3) to the person whosuffered loss - Sentence in default can also be imposed - The object of the provision is not merely penal but to make the accused honourthe negotiable instruments - In view of the above scheme, the accusedcould make an application for compounding at the first or secondhearing in which case the Court ought to allow the same - lf such ·application is made later, the accused was required to pay higheramount towards cost etc. - Even if the payment of the cheque amount, |
