TaxTMI 
TaxTMI 
2021 (6) TMI 868
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.... judgment and order dated 31.12.2019 passed by the learned 4th Additional Senior Civil Judge and Additional Chief Judicial Magistrate, Mehsana passed in Criminal Case No.1813 of 2019, under Section 138 of the Negotiable Instruments Act, 1881." 2. The brief facts of the case as stated in the application are reproduced hereinbelow:- 2.1. The applicant issued a cheque dated 29.11.2018 bearing no.088494 amounting to Rs. 9,00,000/- drawn on Axis Bank, Naranpura Branch in favour of the original complainant and on deposition of the same, the cheque came to be dishonored on 05.12.2019 with notings that 'Account Closed' and the concerned bank informed the original complainant on 15.01.2019 as stated by the complainant. After issuance of notice, the original complainant instituted Criminal Complaint No.1813 of 2019 for the alleged offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short "the NI Act"). 2.2. The learned trial court vide order dated 31.12.2019, convicted the applicant imposing one year Simple Imprisonment and also directed the applicant to pay compensation to the original complainant to the tune of Rs. 13,50,000/-, in default to w....
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....t with consent be allowed on imposition of appropriate costs. 7. I have heard the learned advocate Dr.Venugopal Patel for the applicant, learned advocate Mr.DigantPopat for respondent no.2 and learned APP Ms.NishaThakore for the respondent-State. 8. On 09.03.2021, this Court passed the following order:- "1. Heard Dr.Venugopal Patel, learned advocate for the applicant, Mr.Digant M. Popat, learned advocate for the respondent no.2 and Ms. NishaThakore, learned APP for respondent-State. 2. Learned advocate for the applicant has taken this Court through the factual matrix arising out of the present application. He submitted that the amount has been repaid in cash. He submitted that respondent No. 2 has filed an affidavit in these proceedings and has declared that the dispute between the applicant and respondent No. 2 is resolved and the respondent No. 2 objection if the judgment and order dated 13.12.2019 passed in Criminal Case No. 1813 of 2019 under Section 138 of the Negotiable Instruments Act is quashed and set aside. 3. Since the applicant is also convicted under Section 138 of the Negotiable Instruments Act, learned advocates for appearing for both....
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....ipal Corporation, Indore v. Ratnaprabha reported in AIR 1977 SC 308 where the Apex Court was dealing with similar principle and proposition of law of interpretation while dealing with the language of non obstante clause on the question of construction, it has been observed that:- "As has been stated, clause (b) of Section 138 of the Act provides that the annual value of any building shall "notwithstanding anything contained in any other law for the time being in force" be deemed to be the gross annual rent for which the building might "reasonably at the time of the assessment be expected to be let from year to year" While therefore, the requirement of the law is that the reasonable letting value should determine the annual value of the building, it has also been specifically provided that this would be so "notwithstanding anything contained in any other law for the time being in force". It appears to us that it would be a proper interpretation of the provisions of clause (b) of Section 138 of the Act to hold that in a case where the standard rent of a building has been fixed under Section 7 of the Madhya Pradesh Accommodation Control Act, and there is nothing to show that ....
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....t has overriding effect on the intention of legislature reflected in Section 320 Cr.P.C. 25. The offence punishable under Section 138 NI Act is not an economic offence within the meaning of the economic offence so far as the applicability of Limitation Act 1974 , but sull it is an offence falling within the compass of offences against property within the meaning of Chapter XVII of Indian Penal Code. Without entering into the point whether existence of mens rea is required to be brought on record legally to bring home the charge against the accused of the offence under Section 138 of NI Act, at least can be inferred that the intention of legislature while inserting Section 147 of the NI Act was clear that the aggrieved party can compound the offence. On a plain reading of Section 147 of NI Act, it 1s clear that the same does not confer any obligation to obtain permission for entering into a compromise or to compound the offence. 27. The country is under the process of and progress towards globalization. So the intention of the legislature and object of enacting "Banking", Public Financial Institutions and the Negotiable Instrument Laws (Amended Act) 1988 and subseq....
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.... accepted by our courts that, if possible, the parties should be provided justice at the door step. The phrase "justice at the door step" has taken this Court to think and reach to a conclusion that it can be considered and looked into as one of such special circumstances especially when grant of previous permission to enter into compromise for the purpose of compounding offence is not made a condition precedent in Section 147 of NI Act. Of course, the parties compounding the offence under Section 138 of NI Act obviously are bound to satisfy the conscious of the court on facts, when the jurisdiction under Article 226 of the Constitution of India read with Section 482 Cr.P.C. is invoked with readiness and willingness to pay the reasonable amount of costs, if awarded while dealing with such petitions." 11. It would be apposite to refer to the observations made and guidelines issued by the Apex Court in the case of Damodar S. Prabhu V/s Sayed Babalal H., [(2010) 5 SCC 663], which are produced as under:- "10. At present, we are of course concerned with Section 147 of the Act, which reads as follows: "147, Offences to be compoundable.--Notwithstanding anything conta....
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....y General have stressed on the fact that unlike Section 320 CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court. The Guidelines:- (i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. (b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. (c) Similarly, if the application for compo....
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....t prospectively. 24. We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the CrPC cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act. 25. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any Court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent court i....
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.... dated 25-2-2010 passed by this Court in Criminal Revision Application No.368 of 2009 is hereby recalled and_ the judgment and order dated 29-4-2008 passed by the learned 13 Addl. Senior Civil Judge & J.M.F.C., Vadodara, in Criminal Case No.3808 of 2003 is hereby quashed and set aside and the judgment and order dated 12-5-2009 passed by the learned Addl. Sessions Judge, Fast Track Court No.5, Vadodara, in Criminal Appeal No.32 of 2008 is hereby confirmed and the applicant-accused is ordered to be acquitted. He is in jail and hence, he is ordered to be released forthwith, if not required in any other case. Fine, if any, paid by the accused is ordered to be refunded to him. The parties are permitted to compound the offence. Rule is made absolute....." 13. This Court by the order dated 24.11.2011 in Criminal Revision Application No.479 of 2011 made the following observations:- "6. The Apex Court in the case of Vinay DevannaNayak v. RyotSevaSahakari Bank Ltd. reported in AIR 2008 SC 716 has observed as under in paras 17 18 of the judgment: "17. As observed by this Court in Electronic Trade & Technology Development Corporation Ltd.v. Indian Technologists and Enginee....
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....e dispute amicably and the cheque amount is already paid by the applicant to respondent No. 2 and the applicant has also deposited a sum of Rs. 10,000/- with the Gujarat State Legal Services Authority to be deposited as per the decision of the Hon'ble Supreme Court in the case of DAMODAR S. PRABHU (Supra) to be deposited while permitting the applicant to compound the offence and considering the decision of the learned Single Judge of this Court in the case of KIRPALSINGH PRATAPSINGH (Supra) and as neither the learned APP nor the learned advocate appearing on behalf of the respondent No. 2, under instructions from his client, have no objection in permitting the applicant to compound the offence for which the applicant is convicted for the offence punishable under Section 138 of the Negotiable Instruments Act, applicant is permitted to compound the offence for which he is convicted and consequently the order of conviction passed by the learned trial Court dated 12/07/2005 in Criminal Case No. 581/2002 and the order passed by the learned Sessions Court dated 30/06/2009 in Criminal Appeal No. 26/2005 confirmed by this Court in Criminal Revision Application No. 619/2009 are hereby q....