2021 (1) TMI 566

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....referred to as 'the Appellate Court') in Criminal Appeal No.2 of 2015 and Criminal Revision No.7 of 2015. 2. The brief facts necessary for the purpose of deciding the appeal are that the appellant­ original complainant had filed a complaint against respondent no.2­original accused for the offence under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the said Act') before the Judicial Magistrate First Class, Jetpur (hereinafter referred to as 'the Trial Court'), which was registered as the Criminal Case No.186 of 2009. The Trial Court after considering the evidence on record vide the judgment and order dated 23.02.2015 convicted the respondent no.2­accused for the offenc....

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....vidence and solely on the ground that the respondent no.2­accused had deposited Rs. 2,00,000/­ towards compensation, interest and cost. 4. However, learned Advocate Mr. Bhavesh P. Trivedi appearing for the respondent no.2­ drew the attention of the Court that the respondent no.2 had shown his bonafides by sending demand draft of Rs. 50,000/­ to the complainant pending the trial, however, the same was refused by the complainant and in any case, the respondent no.2 thereafter had deposited Rs. 2,00,000/­ i.e. four times of the amount due, in the court towards special compensation, interest and cost, as the amount to be paid to the complainant. According to him, in view of the decision of the Supreme Court in the case of....

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....n 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 primaril....

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....d 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." 7. So far as the facts of the present case are concerned, though the respondent no.2 was convicted by the Trial Court, the Appellate Court acquitted him consid....