TaxTMI 
TaxTMI 
2020 (3) TMI 1403
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.... Court after hearing the parties and going through the judgments referred to by the counsel, observed that compounding of the offence under Section 138 of the Negotiable Instruments Act (for short `the Act'), cannot be allowed without the consent of the complainant. While issuing notice of motion, this Court on 25.4.2012 passed the following order:- "Learned counsel for the petitioner, inter-alia, contends that application of the petitioner has been dismissed in view of the ratio of judgment in JIK Industries Ltd. & Others Vs. Amarlal Vs. Jumani and another, 2012(1) RCR (Criminal) 822, whereas judgment in the case of Damodar S. Prabhu Vs.Sayed Babalal H., 2010(2) RCR (Criminal) 851, is applicable in the case of the petitioner as....
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..../s Meters and Instruments Pvt. Ltd. and another Vs. Kanchan Mehta, 2017 AIR (SC) 4594, it is contended that the offence under Section 138 of the Act, can be compounded even in the absence of the consent of the complainant. In the said judgment, the Hon'ble Apex Court, while discussing its earlier judgments in Damodar S. Prabhu (supra) and JIK Industries (supa), has held that where the cheque amount is paid by the complainant, the Court is entitled to close the proceedings. The relevant extracts from the judgment would read 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 in view presumption under Section 139....
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....ence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 I.P.C. and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases. v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonour of cheque, it is unnecessary for the Magistrate to record 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 ....
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.... 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....
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....l, while passing of order dated 6.11.2012 by the trial Court, the then learned SDJM Camp Court, as under:- "Present: Complainant with counsel. Accused on bail with counsel. -.- Today the case was fixed for defence evidence. The counsel for the accused today produced the certified copy of the order passed by Hon'ble High Court dated 6.8.2012 where the proceeding of this case, have been stayed and the amount of Rs.1,52,500/- has already been deposited by the accused as per the directions of the Hon'ble High Court. Now the present case is adjourned to 22.12.2012 for awaiting further orders of Hon'ble High Court." From the report, it is clear that the petitioner has complied with the interim order passed b....