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2022 DIGILAW 2304 (RAJ)

Shailash R. Mehta v. State Of Rajasthan

2022-08-25

PUSHPENDRA SINGH BHATI

body2022
JUDGMENT Pushpendra Singh Bhati, J. - This misc. petition has been preferred claiming the following the prayers:- "It is, therefore, most humbly and respectfully prayed that this Criminal Misc. Petition may kindly be allowed and the order dated 25.01.2018 passed by Additional Sessions Judge, Shahpura Camp Jahajpur, District Bhilwara in Criminal Appeal No. 08/2010 may kindly be quashed and set aside. Further, the order dated 29.04.2010 passed by the learned J.M. (J.D.) in case no. 82/2003 may kindly be quashed and set aside." 2. Learned counsel for the petitioner submits that a complaint was filed under Section 138 Negotiable Instrument Act, 1881 for a cheque to the tune of Rs. 1,57,000/- on 18.12.2002. The complaint was allowed vide order dated 29.04.2010 and one year's simple imprisonment and penalty of Rs. 2,00,000/- was imposed upon the petitioner. Thereafter, the petitioner preferred an appeal before the learned appellate court and also preferred an application under Section 258 of the Cr.P.C. alongwith demand draft of Rs. 4,71,000/- stating that he was prepared to pay the amount of cheque to the complainant seeking quashing of the proceedings. The same was opposed by counsel for the respondent. Therefore, the learned trial court on 25.01.2018 has rejected the application of the petitioner. 3. The present petition has been preferred challenging the order dated 25.01.2018. 4. Learned counsel for the petitioner submits that Section 138 N.I. Act proceedings are primarily a civil wrong. 5. Learned counsel for the petitioner has relied upon the judgment of Hon'ble Apex Court in the matter of Meters and Instruments (P) Ltd. & Anr. v. Kanchan Mehta reported in (2018) 1 SCC 560 , the relevant portion of which reads as follows:- "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 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. 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 primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court. iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused." 6. Learned counsel for the respondent opposes the application on merits and submits that he does not give consent to any kind of closure of proceedings on payment being made. 7. After hearing counsel for the parties and perusing the record of the case, this Court, finds that the proceedings under Section 138 of the N.I. Act has been held by the Hon'ble Apex Court to be a civil wrong and a clear mandate has been arrived at in the precedent law cited i.e. Meters and Instruments (P) Ltd. (supra) that even though compounding requires consent of both the parties, even in absence of such consent, the Court, in the interest of justice, on being satisfied that the complainant was duly compensated, closed the proceedings and discharged the accused. 8. It is not in dispute that the original cheque was of Rs. 1,57,000/- whereas, at the time of filing of the application, the sum amount offered was of Rs. 4,71,000/-. 9. The precedent law cited above squarely covers the present condition. The offence under Section 138 of N.I. Act, although a criminal offence, it can certainly be considered as a civil wrong for the purpose of invoking Section 258 of the Cr.P.C. 10. 4,71,000/-. 9. The precedent law cited above squarely covers the present condition. The offence under Section 138 of N.I. Act, although a criminal offence, it can certainly be considered as a civil wrong for the purpose of invoking Section 258 of the Cr.P.C. 10. This Court further takes note of the fact that in the year 2011 itself there was a clear refusal on the part of the respondent to accept the amount for compounding the offence herein. 11. In view of the above, the present criminal misc. petition is accordingly allowed while quashing and setting aside the order dated 25.01.2018 passed by learned Additional Sessions Judge, Shahpura Camp, Jahajpur, District Bhilwara in Criminal Appeal No. 8/2010 and order dated 29.04.2010 passed by the learned Judicial Magistrate, Jahajpur, District Bhilwara in Case No. 82/2003. 12. Counsel for the parties have placed reliance on a decision of Supreme Court in case of Damodar S. Prabhu v. Sayed Babalal H [2010(5) SCC 66]. 13. Having considered the facts and circumstances of the case, since the parties have settled the dispute and complainant respondent No. 2 had accepted the sum towards full and final settlement of the cheque, on the satisfaction of the complainant and in the light of provisions of Section 147 of NI Act and in view of law laid down by the Hon'ble Apex Court in the case of Damodar S. Prabhu v. Sayed Babalal H. (supra), the sentence awarded to the petitioner for offence under Section 138 NI Act is liable to be set aside. However, since the compromise has been arrived at after rejection of the appeal preferred by the petitioner, a cost of 15% of the cheque amount deserves to be imposed upon the petitioner in the light of the decision rendered by the Hon'ble Apex court in the case of Damodar S. Prabhu (Supra). 14. Accordingly, the petitioner is directed to deposit 15% of the cheque amount with the State Legal Services Authority, Jodhpur within a period of two weeks from today. 15. The demand draft of Rs. 4,71,000/- shall be immediately released in favour of the respondent No. 2. 16. In case the demand draft requires re-validation, the same be returned to the petitioner, who shall get it re-validated within a period of 30 days from today. 17. All pending applications stand disposed of accordingly.