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2011 DIGILAW 2108 (PNJ)

Anil Kumar v. Pawan Kumar Ahuja

2011-11-23

AUGUSTINE GEORGE MASIH

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JUDGMENT AUGUSTINE GEORGE MASIH, J. (ORAL) Prayer in this petition is for quashing of Complaint No.556/2 dated 17.05.2007 (Annexure P-1) filed by the respondent under Section 138 of the Negotiable Instrument Act (hereinafter referred to as 'the Act') read with Section 420 of the Indian Penal Code (hereinafter referred to as 'the IPC') and the order dated 11.08.2010 (Annexure P-3) passed by the Judicial Magistrate Ist Class, Ludhiana, vide which the application moved by the petitioner for compounding of the offence in the light of his deposit of Rs.4,000/- with the trial Court on the first date when the petitioner was to appear before the Court, as per the summoning order, was rejected by the Court. It is the contention of the counsel for the petitioner that the petitioner, in the light of Section 147 of the Act, is entitled to compounding of the offence and in case the same not acceptable to the complainant then quashing of the complaint in the light of his deposit of the amount for which the cheque was issued which he had defaulted in payment leading to the initiation of the proceedings against the petitioner under the Act. Learned counsel for the petitioner, in the light of judgments of the Supreme Court in Smt. Nancy Bhakoo vs. Sh. Gurzar Singh 2010(2) RCR (Criminal) 478 and Damodar S. Prabhu vs. Sayed Babalal H. 2010(2) RCR (Criminal) 851 as also a judgment of this Court in Criminal Miscellaneous No.M-23421 of 2008 titled as 'Balbir Singh vs. M/s Aggarwal Mfg. Co.' decided on 11.11.2010, prays for quashing of the complaint along with all consequential proceedings arising therefrom. On the other hand, counsel for the respondent submits that compounding of an offence is the discretion of the person, who is agrieved. In the present case it is the complainant, who is not willing to compound the offence despite the offer made by the counsel for the petitioner in Court today to give an additional Rs.4,000/- apart from the amount deposited with the trial Court earlier. His further contention is that the judgment relied upon by the counsel for the petitioner would not be helpful to the petitioner in the light of fact that the complainant is not willing to compound the offence. Accordingly, he prays for dismissal of the present petition. His further contention is that the judgment relied upon by the counsel for the petitioner would not be helpful to the petitioner in the light of fact that the complainant is not willing to compound the offence. Accordingly, he prays for dismissal of the present petition. It needs mention here that as per the pleadings petitioner is a tenant under the respondent on a monthly rent of the premises fixed at Rs.4,000/- and the cheque in question was given as a security of rent for one month. The respondent has presented the cheque in the bank despite the fact that nothing was due towards rent as there was regular payment of rent by the petitioner. Eviction proceedings were initiated by the respondent which was not contested by the petitioner. In the present case, as the facts reveal on receipt of summons from the Court on a complaint filed by the respondent under Section 138 of the Act for bouncing of a cheque amounting to Rs.4,000/- due to insufficiency of funds in the account, the petitioner deposited the said amount of Rs.4,000/- in the trial Court on his date of first appearance. Thereafter, he moved an application for compounding of the offence under Section 147 of the Act which has been dismissed by the Court vide order dated 11.8.2010. The petitioner approached this Court at a stage when the complainant had refused to receive the amount for which the cheque in question was issued and to compound the offence. In this situation the Court is being called upon to decide the issue as to whether in such a situation the complaint can be quashed especially when the petitioner is offering another Rs.4,000/- over and above the amount due and deposited in Court which would take care of the loss, if any, which respondent-complainant would have incurred from the date of issue of cheque till date. Faced with a similar situation this Court in CRM No.23421 of 2008 titled as 'Balbir Singh vs. M/s Aggarwal Mfg. Co.' decided on 11.11.2010, held as follow:- “The provisions of Section 147 of the Act, which makes all the offence under the Act compoundable and the law laid down to the effect that compounding of the offence under Act would be permissible even after conviction would indicate the manner in which the courts should deal with an offence allegedly committed under the Act. In a situation, where the accused is ready and willing to pay the amount of the cheque in question, the insistence of the complainant for an adjudication on merits by refusing to accept the amount, itself, would amount to an abuse of the process of the court. In view of the above, I am of the considered opinion that the proceedings against the accused-petitioner in complaint No.223/2 dated 01.04.2003 (Annexure P-2) under Section 138 of the Act and the order dated 31.05.2003 (Annexure P-3) summoning the accused-petitioner, should be quashed in the interest of justice subject to the condition that the accused-petitioner will deposit the bank draft of Rs.17000/- with the registrar General of this Court within ten days from today. Thereafter, the said bank draft may be received by the complainant.” In view of the above, the present case is covered by the ratio of the above order thus, the petitioner is entitled to the same relief. The present petition is allowed. Proceedings initiated on Complaint No.556/2 dated 17.05.2007 being abuse of process of the Court in the given facts and circumstances of the case, is hereby quashed. The petitioner shall however, deposit Rs.4,000/- as undertaken by his counsel before the trial Court within a period of two weeks from the date of receipt of the certified copy of this order. Complainant shall be at liberty to withdraw the amount deposited by the petitioner thereafter.