TaxTMI 
TaxTMI 
2021 (12) TMI 329
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.... Additional Chief Metropolitan Magistrate, N.I. Act Court No.27, Ahmedabad. (C) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the learned Additional Chief Metropolitan Magistrate, N.I. Act Court No.27, Ahmedabad, to exempt the presence of petitioners from personal appearance in the interest of justice. (D) An ex-parte ad-interim relief in terms of prayer (B) and (C) above may kindly be granted. (E) Such other and further relief/s as may be deemed just and necessary in the facts and circumstances of the present case may kindly be granted." 1.1 The following prayer has been made in Special Criminal Application No. 2406 of 2019. "17(A) Your Lordships may be pleased to issue appropriate writ, order or direction, directing the learned Additional Chief Metropolitan Magistrate Court No.27 to close the proceedings pending before him being Criminal Case No. 87823 of 2018 dated 18.09.20218 and passed an order of acquittal in the interest of justice. (B) Pending hearing and final disposal of the present petition, Your Lordships may be pleased to stay further proceedings of Criminal Case No. 8....
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....outstanding amount of the cheque which has been dishonored, has been repaid prior to the returnable date. It is urged before this Court that the amount has been paid by way of RTGS. 2. He has urged that the case of Meters and Instruments Private Limited and Anr. vs. Kanchan Mehta reported in AIR 2017 SC 4594, also permits the closure of the case without waiting for the consent of the other side. 3. Issue Notice for final disposal, making it returnable on 14th March, 2019. Learned Additional Public Prosecutor waives service of notice on behalf of the respondent-State. 4. Interim relief in terms of Para - 17 (C) is granted. Direct service tomorrow is permitted." 3. In view of the aforesaid order, the interim relief of exempting the presence of the petitioners for personal appearance before the learned Additional Chief Metropolitan Magistrate, N.I. Act Court No.27, Ahmedabad, was allowed. 4. The matter was urged before the court for closure of the criminal proceedings before the learned Additional Chief Metropolitan Magistrate, N.I. Act Court No.27, Ahmedabad, on the ground of directions and observations made in M/s. Meters and Instruments Pri....
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....vations made by the Hon'ble Apex Court in the case of M/s. Meters and Instruments (supra) particularly para 18, and submitted that, when the petitioner company has already made the payment of the cheques then the court by following the object of the provisions should exercise the discretion by closing the proceedings under the powers which has been granted under Section 143 read with Section 258 of Cr.P.C. and Section 357(3) of the Cr.P.C. 6. Mr. Shrijit Pillai, learned advocate for the respondent No.2-company submitted that the contract between the parties was to give 15% interest and the petitioner - company is bound to pay the same, and when the petitioner - company does not agree with the amount of cost or interest, as proposed by the accused, then that would be a sufficient to deny any consent; and thus, when there is no consensus towards the interest amount, then the court should be slow in exercising the discretion. 7. In para 18 of M/s. Meters and Instruments (supra) it has been observed as under: "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 ....
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....er 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." 8. The Hon'ble Apex Court has thus laid down in the said judgment that the offence under Section 138 of N.I.Act is primarily a civil wrong, the burden of proof is on the accused in view of presumption under Section 139 but the standard of such proof is preponderance of probabilities and normally such matters should be tried summarily. The object of the provision is primarily to compensate and thus the punitive element is required to be considered with the only object for enforcing the compensatory element. Thus it has been laid down that compounding the matter at the initial stage should be encouraged subject to appropriate order of interest and cost as may be found acceptable to the parties or the court. 9. It may happen that the complaining party may not give its consent for compounding the case. It has been further observed in the said judgment that, in such a situation, the Court....
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....Act, it may be desirable that the complainant gives his bank account number and if possible e-mail ID of the accused. If e-mail ID is available with the Bank where the accused has an account, such Bank, on being required, should furnish such e-mail ID to the payee of the cheque. In every summons, issued to the accused, it may be indicated that if the accused deposits the specified amount, which should be assessed by the Court having regard to the cheque amount and interest/cost, by a specified date, the accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant . If the accused complies with such summons and informs the Court and the complainant by e-mail, the Court can ascertain the objection, if any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case. In such a situation, the accused's presence can be required, unless the presence is otherwise exempted subject to such conditions as may be considered appropriate. The accused, who wants to contest the case, must be required to disclose specific defence for such contest. It is open to the Court to ask specific questions to the....