M/S. METERS AND INSTRUMENTS PRIVATE LIMITED & ANR. VS KANCHAN MEHTA[05-10-2017]
held :
In JIK Industries Ltd. vs Amarlal Jumani — which required consent of the complainant for compounding
Vinay Devanna Nayak v. Ryot Sewa —nature of offence under Section 138 primarily related to a civil wrong and the 2002 amendment specifically made it compoundable.
R. Vijayan v. Baby (2012) 1 SCC 260—Section 357(1)(b) of the Cr. P.C. provides for payment of compensation for the loss caused by the offence out of the fine
- Rajneesh Aggarwal v. Amit J. Bhalla—(2001) 1 SCC 631Since the concept of compounding involves consent of the complainant, this Court held that compounding could not be permitted merely by unilateral payment, without the consent of both the parties.
- Mandvi Cooperative Bank Ltd. v. Nimesh B. Thakore(2010) 3 SCC 83, paras 25, 26 The object of Section 145(2) was simpler and swifter trial procedure. Only requirement is that the evidence must be admissible and relevant. The affidavit could also prove documents. Affidavit of the complainant can be read as evidence.Bank’s slip or memo of cheque dishonour can give rise to the presumption of dishonour of the cheque, unless and until that fact was disproved.
- Mandvi Cooperative Bank and J.V. Baharuni (supra) has brought about a change in law and it needs to be recognised. After 2002 amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the Court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the Court.
- Bhaskar Industries Ltd. vs Bhiwani Denim & Apparels Ltd-—this Court considered the issue of hardship caused in personal attendance by an accused particularly where accused is located far away from the jurisdiction of the Court where the complaint is filed. This Court held that even in absence of accused, evidence can be recorded in presence of counsel under Section 273 Cr.P.C. and Section 317 Cr.P.C. permitted trial to be held in absence of accused.
- Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation withdefault sentence under Section 64 IPC and with further powers of recovery under Section 431Cr.P.C.
We may, however, note that this Court held that general directions ought not to be issued which may deprive the Magistrate to exercise power under Section 205 Cr.P.C.26 We need to clarify that the judgment of this Court is not a bar to issue directions which do not affect the exercise of power under Section 205, to require
personal attendance wherever necessary. Needless to say that the judgment cannot be read as affecting the power of the High Court under Article 225 of the Constitution read with Articles 227 and 235 to issue directions to subordinate courts without affecting the prevailing statutory scheme.
Summary Trial
Once the complaint is filed which is accompanied by the dishonored cheque and the bank’s slip and the affidavit, the Court ought to issue summons. The service of summons can be by post/e-mail/courier and ought to be properly monitored. The summons ought to indicate that the accused could make specified payment by deposit in a particular account before the specified date and inform the court and the complainant by e-mail. In such a situation, he may not be required to appear if the court is satisfied that the payment has not been duly made and if the complainant has no valid objection. If the accused is required to appear, his statement ought to be recorded forthwith and the case
fixed for defence evidence, unless complainant’s witnesses are recalled for examination.
Discharge Order to be issued
we hold that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C. As already observed, normal rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary taking into account the fact that compensation under Section 357(3) Cr.P.C. with sentence of less than one year will not be adequate, having regard to the amount of cheque, conduct of the accused and other circumstances.
