• Acussed ready to pay cheque amount but complainant refusing

The acussed in 138 NI case is ready to pay whole amount of cheque and other expenses also if any but the complainant is refusing ...what to do in this present case
Asked 5 months ago in Criminal Law from Jalandhar, Punjab
Religion: Sikh
1)application for compounding can only be made with consent of complainant 

2) Sc has held Section 147 of the N.I. Act must be reasonably construed to mean that as a result  of the said Section the offences under N.I. Act  are made compoundable, but the main principle of  such compounding, namely, the consent of the  person aggrieved or the person injured or the  complainant cannot be wished away nor can the same  be substituted by virtue of Section 147 of N.I.

3)if complainant is refusing to accept the money you should deposit the amount in court and make application for exemption from personal appearance . 

4) although trial would continue court would consider fact that you have deposited amount in court which passed order 
Ajay Sethi
Advocate, Mumbai
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unjab-Haryana High Court
Balwinder Singh And Others vs Baljit Singh on 13 July, 2012
      IN THE HIGH COURT OF PUNJAB AND HARYANA
                   AT CHANDIGARH
                   ****
Crl. Misc. No. M-12929 of 2011 Date of Decision:13.07.2012 Balwinder Singh and others .....Petitioners Vs.

Baljit Singh .....Respondent CORAM:- HON'BLE MR. JUSTICE M.M.S. BEDI Present:- Mr. Vishal Sharma, Advocate for the petitioners.

Mr. Vivek Salathia, Advocate for Mr. Amandeep Singh, Advocate for the respondent.

**** M.M.S. Bedi, J.(Oral) This is a petition under Section 482 Cr.P.C filed by the petitioners for quashing of complaint No.44/2 under Section 138 of Negotiable Instruments Act, 1985 dated 19.2.2007 along with order dated 2.11.2010 passed by JMIC, Ludhiana and all subsequent proceedings arising therefrom.

The petitioner is ready to compound the offence as he had offered the amount of the cheque at the first date of hearing before the trial Court to compound the offence.

Offer of the petitioner to compound the offence by putting the amount as per judgment in the case Damodar S. Prabhu v. Sayed Babalal H., 2010(2) R.C.R. (Criminal) 851, has not been accepted by the complainant claiming that the complainant has been unnecessarily harassed.

Counsel for the petitioner has made a statement that since the compounding of offence has been refused by the complainant, as per the judgment in Balbir Singh v. M/s Aggarwal Mfg. Co., - Crl. Misc. No. M- 23421 of 2008 decided on 11.11.2010, the proceedings under Section 138 of the NI Act must be quashed.

I have gone through the said judgment. The obiter dicta of the said judgment is that if accused- petitioner is ready and willing to pay the amount of the cheque and presses for adjudication on merits, it would amount to an abuse of the process of the Court.

I have considered the facts and circumstances in the said case. The amount of cheque was Rs.17,000/- only, which was not being accepted by the complainant. In the present case, the amount of cheque exceeds Rs.2.5 lacs and the complainant had filed the complaint in February, 2007, a period of 5 years has elapsed. In such circumstances, after harassing the complainant for a long duration, he cannot be compelled to compound the offence. Besides the judgment of Apex Court in Damodar S. Prabhu's case (supra), the compounding can be permitted with the consent of the parties, it cannot be enforced where the huge amount has been apparently withheld for long duration. The demand of complainant for higher amount of compensation and interest does not appear to be unreasonable at this stage.

It is apparent from the facts and circumstances of the present case that the offer of the accused- petitioner for returning the amount of cheque alongwith interest in accordance with the judgment of Damodar S. Prabhu's case (supra) is being not accepted by the complainant on the pretext that the complainant is entitled to more amount beyond the amount of cheque for having been unnecessarily harassed.

On the other hand, the petitioner submits that it is an abuse of the process of the Court that despite his offer to pay the amount of cheque, which is the subject matter of the complaint, the complainant is bent upon to continue with the proceedings.

It is observed here that the proceedings under Section 138 of the Negotiable Instruments Act cannot be permitted to be used as a trump card to earn interest in the garb of prosecution. In case, the complainant is interested in any higher amount, it is open for the complainant to launch civil litigation for the amount of interest or compensation. At the same time bonafide of an accused, who offer the amount of cheque in dispute in proceedings under Section 138 of the Negotiable Instruments Act cannot be ignored.

Without expression of any opinion whether it is the complainant who wants to harass the accused- petitioner or it is the conduct of petitioner which had caused unnecessary harassment to complainant, in the interest of justice it is directed that prosecution under Section 138 of the Negotiable Instruments Act may continue but if the amount of cheque in the shape of bank draft in the name of complainant alongwith interest calculated as per the judgment of Damodar S. Prabhu's case (supra) is submitted before the trial Court, the said amount will be offered to the complainant by the Court, and the trial Court will be entitled to exempt the personal appearance of the petitioner during the course of trial in case any application is moved subject to any condition imposed by the trial Court. The evidence can be recorded in the presence of counsel for the petitioner by exempting his personal appearance as per the provisions of Section 273 Cr.P.C. This order will not prejudice the rights of the complainant to file a suit for recovery of the amount of the cheque with interest besides claiming compensation before the Civil Court treating the deposit of the cheque amount as acknowledgement of debt for the purpose of limitation.

Dismissed.

Parties are direction to appear before the trial Court on August 4, 2012 for trial in accordance with law.

July 13, 2012                               ( M.M.S. BEDI )
renu                                            JUDGE
 
Ajay Sethi
Advocate, Mumbai
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The criminal complaint in section 138 NI act is no doubt criminal in nature but the court may discreet to direct the accused to pay the amount before the court to the complainant with the costs and dispose the case. 
So let the accused deposit the amount before court by filing a petition to this effect and also seek to absolve himself from the case.
T Kalaiselvan
Advocate, Vellore
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The offence can be compounded but for this to be done the cheque amount has to be accepted by the complainant. Since he is not accepting the amount the accused should deposit the demand draft of the amount in the court. He can then move the HC for the quashing of the case whereas the dd can be given by the court to the complainant on his demand.
Ashish Davessar
Advocate, Jaipur
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