Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
CRIMINAL WRIT PETITION NO.196 OF 2014
M/s Soft-touch Computer,
through its Proprietor
Shashikant s/o Bhaskar Zope,
Age 44 years, Occ. Business,
R/o C-201, Top Floor,
Shubhkamna Sankul,
Ganesh Colony Road, Jalgaon,
Taluka and District Jalgaon ... PETITIONER
VERSUS
1. The State of Maharashtra
(Copy for to be served on
Public Prosecutor, High Court,
Bench at Aurangabad)
2. B.R. System, Jalgaon,
through its Proprietor,
Shashikaladevi Ravindranath
Mundada, Age major,
Occ. Business, R/o Mamurabad,
Taluka and District Jalgaon, and
Shop No.153, C Wing,
Golani Market, Jalgaon,
Taluka and District Jalgaon. ... RESPONDENTS
.....
Shri C.P. Patil, Advocate for petitioner
Mrs. S.G. Chincholkar, A.P.P. for respondent No.1/State
Respondent No.2 - notice not issued
.....
W I T H
CRIMINAL WRIT PETITION NO.197 OF 2014
M/s Soft-touch Computer,
through its Proprietor
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Shashikant s/o Bhaskar Zope,
Age 44 years, Occ. Business,
R/o C-201, Top Floor,
Shubhkamna Sankul,
Ganesh Colony Road, Jalgaon,
Taluka and District Jalgaon ... PETITIONER
VERSUS
1. The State of Maharashtra
(Copy for to be served on
Public Prosecutor, High Court,
Bench at Aurangabad)
2. B.R. System, Jalgaon,
through its Proprietor,
Shashikaladevi Ravindranath
Mundada, Age major,
Occ. Business, R/o Mamurabad,
Taluka and District Jalgaon, and
Shop No.153, C Wing,
Golani Market, Jalgaon,
Taluka and District Jalgaon. ... RESPONDENTS
.....
Shri C.P. Patil, Advocate for petitioner
Mrs. S.G. Chincholkar, A.P.P. for respondent No.1/State
Respondent No.2 - notice not issued
.....
W I T H
CRIMINAL WRIT PETITION NO.198 OF 2014
M/s Soft-touch Computer,
through its Proprietor
Shashikant s/o Bhaskar Zope,
Age 44 years, Occ. Business,
R/o C-201, Top Floor,
Shubhkamna Sankul,
Ganesh Colony Road, Jalgaon,
Taluka and District Jalgaon ... PETITIONER
VERSUS
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1. The State of Maharashtra
(Copy for to be served on
Public Prosecutor, High Court,
Bench at Aurangabad)
2. B.R. Traders, Jalgaon,
through its Proprietor,
Bharat Ravindranath Mundada,
Age major, Occ. Business,
R/o Mamurabad,
Taluka and District Jalgaon, and
Shop No.153, C Wing,
Golani Market, Jalgaon,
Taluka and District Jalgaon. ... RESPONDENTS
.....
Shri C.P. Patil, Advocate for petitioner
Mrs. S.G. Chincholkar, A.P.P. for respondent No.1/State
Respondent No.2 - notice not issued
.....
CORAM: A.I.S. CHEEMA, J.
DATED: 22nd April, 2014.
Date of reserving judgment : 21/3/2014
Date of pronouncing judgment : 22/4/2014
JUDGMENT :
1. These Criminal Writ Petitions have been taken up for
final hearing on admission stage with consent of counsel for
petitioner and learned A.P.P. for State.
(A) Criminal Writ Petition No.196/2014 is arising out of
order dated 23.12.2013, passed by Judicial Magistrate, First
Class, 2nd Court, Jalgaon below Exhibits 66 and 68 in S.C.C. No.
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1858/2006, which order has been maintained by Additional
Sessions Judge, Jalgaon, vide judgment and order dated
9.1.2014, passed in Criminal Revision Application No.13/2014.
(B) Criminal Writ Petition No.197/2014 is arising out of
order dated 23.12.2013, passed by Judicial Magistrate, First
Class, 2nd Court, Jalgaon below Exhibits 67 and 69 in S.C.C. No.
1961/2006, which order has been maintained by Additional
Sessions Judge, Jalgaon vide order dated 9.1.2014, in Criminal
Revision Application No.11/2014.
(C) Criminal Writ Petition No.198/2014 is arising out of
order dated 23.12.2013, passed by Judicial Magistrate, First
Class, 2nd Court, Jalgaon below Exhibits 78 and 80 in S.C.C. No.
1729/2006, which order has been maintained by Additional
Sessions Judge, Jalgaon vide order dated 9.1.2014, in Criminal
Revision Application No.12/2014
2. In the trial Court, the summary criminal cases
mentioned above are pending between the present petitioner
and respondent No.2 - B.R. System, Jalgaon/ B.R. Traders,
Jalgaon. The complaints have been filed by B.R. System and B.R.
Traders, and present petitioner is accused. Similar applications
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were moved in the three matters and similar facts relevant for
present decision are involved and similar orders are there
leading to the present Writ Petitions.
3. For the convenience of understanding the dispute, I
am referring to the facts in detail from the record of Criminal
Writ Petition No.196/2014.
4. The petitioner- accused claims that, the respondent
No.2 has filed the complaint under Section 138 of the Negotiable
Instruments Act, 1881, which is pending before the Judicial
Magistrate, First Class. In the complaint, it is alleged that, due
to business relationship, against goods sold on credit, petitioner-
accused had issued cheque as mentioned in the complaint for
the amount stated. The cheque was dishonoured and notice of
demand was issued and as in spite of notice petitioners- accused
failed to comply, the complaint came to be filed.
5. The petitioner claims that, there was oral
compromise with complainant in 2008 and the petitioner
deposited the amount of cheque by filing application Exh. 34 and
the complainant accepted the amount. According to petitioner,
on 21.1.2013, he filed application Exh. 66 under Section 245 of
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the Code of Criminal Procedure (Cr.P.C. for short), claiming that
he has already paid the amount of cheque to complainant which
has been accepted by the complainant and the whole amount of
the cheque has been covered as per oral compromise with the
complainant. It was claimed that, still the complainant is not
withdrawing the complaint and so, the petitioner- accused
should be discharged. The claim of the petitioner was resisted
by the respondent No.2- complainant. The Judicial Magistrate,
First Class rejected the application. On 17.4.2013, the
petitioner- accused filed another application vide Exh. 68 under
Section 147 of the Negotiable Instruments Act, claiming that the
complaint be disposed holding that there is compromise which
took place between the petitioner and respondent No.2 as he has
repaid the amount of cheque which has been accepted by the
complainant. In the present petition, it is claimed that the
complainant resisted the application and Judicial Magistrate,
First Class illegally dismissed the said application. Petitioner-
accused then filed Revision Application against the rejection of
applications Exh.66 and 68. The petitioner contended that he is
ready to pay amount of fine also, still the Additional Sessions
Judge dismissed the revision application. Thus, the present Writ
Petitions.
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6. I have heard learned counsel for the petitioner. It
has been argued that, the various amounts of cheques involved
in the three matters were deposited by the petitioner in the
Court of Judicial Magistrate, First Class and the amounts had
been withdrawn by the complainant and so, continuing of the
complaint even after depositing of the amounts of cheque was
abuse of process and according to the learned counsel, the
proceedings should have been stopped and petitioner- accused
should have been discharged in the matter. Reliance has been
placed on the case of Subhash Nagpal & anr. Vs. Neeraj Kakkar,
reported in 2012(1) DCR 579. It has been submitted by the
learned counsel that, in that matter, the proceedings were
quashed when the petitioner before High Court had offered the
amount of disputed cheque and also offered to pay amount of
interest. Reliance is also placed in the case of Vikal Jalan Vs.
M/s Shreya Pet Private Limited & ors., reported in 2012 ALL
SCR 1171, and request is made that the petitioner has already
deposited the amount of cheque and so, the present petitions
should be allowed and the concerned complaints should be
quashed.
7. Learned A.P.P. submitted that, Section 138 of the
Negotiable Instruments Act describes as to how the offence
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under the concerned provision takes place and according to
learned A.P.P., under Section 147 of the Negotiable Instruments
Act, offence can be compounded, but however, for compounding,
it cannot be unilateral declaration of the petitioner that there is
compromise. It will be necessary that both sides come and
agree before the Court that there has been compromise and
terms of compromise are got recorded before the Court.
According to learned A.P.P., there is no substance in these writ
petitions and they deserve to be rejected.
8. Coming to the matter of "Vikas Jalan" (supra), where
Hon'ble Supreme Court passed judgment, the entire amount of
compensation was deposited in the registry of the Supreme
Court and the counsel for respondents submitted that if the
respondents are permitted to withdraw the amount, in that
event, they would not pursue the complaint under Section 138 of
the Negotiable Instruments Act. In such situation, the Hon'ble
Supreme Court directed the amount deposited to be given to the
respondents, with interest, and quashed the complaint
concerned.
9. In the present matter, there is no such situation as
can be seen from the order of the trial Court and the Court in
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revision. In these matters, the complainant has disputed that
there is compromise.
10. As regards the matter of "Subhash Nagpal" (supra),
relied upon by the learned counsel for petitioner, in that matter,
the Hon'ble Punjab & Haryana High Court found that the
petitioner therein had submitted the disputed cheque amount
before the Court in September 2010, but the respondent had
refused to accept the same and wanted to pursue the matter. In
that matter petitioner also offered to make payment of interest
at the rate of 10% from the date when the cheque got
dishonoured. The Punjab & Haryana High Court took the view
that if the petitioner will deposit the consolidated amount of
dishonoured cheque along with interest at the rate of 10% in the
registry within 10 days, the proceeding before the Judicial
Magistrate, First Class will stand quashed. The High Court was
of the view that, continuation of such proceedings was misuse of
the process of law. With due respect, I have reservations. I find
myself bound by clear provisions which I propose to discuss.
11. It would be appropriate to reproduce Section 138 of
the Negotiable Instruments Act to appreciate the present
dispute. Ignoring the explanation below the Section, Section
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138 reads as under :
"138. Dishonour of cheque for insufficiency,
etc., of funds in the account :- Where any cheque
drawn by a person on an account maintained by him
with a banker for payment of any amount of money
to another person from out of that account for the
discharge, in whole or in part, of any debt or other
liability, is returned by the bank unpaid, either
because of the amount of money standing to the
credit of that account is insufficient to honour the
cheque or that it exceeds the amount arranged to be
paid from that account by an agreement made with
the bank, such person shall be deemed to have
committed an offence and shall, without prejudice to
any other provision of this Act, be punished with
imprisonment for a term which may be extended to
two years, or with fine which may extend to twice
the amount of the cheque, or with both:
Provided that nothing contained in this section
shall apply unless --
(a) the cheque has been presented to the bank
within a period of six months from the date on which
it is drawn or within the period of its validity,
whichever is earlier.
(b) the payee or the holder in due course of the
cheque, as the case may be, makes a demand for the
payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within
thirty days of the receipt of information by him from
the bank regarding the return of the cheque as
unpaid; and
(c) the drawer of such cheque fails to make the
payment of the said amount of money to the payee
or as the case may be, to the holder in due course of
the cheque within fifteen days of the receipt of the
said notice."
(emphasis supplied)
12. It is clear from the reading of the above section that
when the cheque gets dishonoured, the person who had drawn
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the cheque, is deemed to have committed the offence and the
person becomes liable for punishment of imprisonment which
may extend to two years or fine which may extend to twice the
amount of cheque, or with both. If the proviso is appreciated,
the person who has drawn the cheque is given one opportunity
to pay within 15 days of receipt of the notice. If this opportunity
given by the proviso is not taken, the rigour of main provision of
Section 138 will get attracted and the person will then be
treated as an accused, liable for punishment. Even if the amount
of cheque is paid thereafter, the offence would still be there and
unilateral payment of amount of cheque will not dilute the
offence. After the complaint has been filed and process is
issued, the accused will have to face the prosecution or the only
way out for the accused would be under section 147, which
provides that the offence punishable under the Negotiable
Instruments Act is compoundable. In criminal offences, when it
is stated that the offence is compoundable, necessarily there are
two parties; one is the accused and other is the complainant/
affected party, against whom the offence is committed.
13. If Exhibit 34 filed by the petitioner before the Court
of Judicial Magistrate, First Class (Exhibit B) in Criminal Writ
Petition No.196/2014) is perused, on 11.4.2008, Advocate for
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petitioner- accused applied to the Court saying that the matter is
fixed for evidence and on behalf of accused, the amount of
cheque involved in dispute by way of Demand Draft from
Centurial Bank of Punjab was being given to the complainant. It
was mentioned that the Demand Draft is drawn in favour of the
complainant and is payable at Jalgaon. The application gave
particulars of the Demand Draft and requested that the Demand
Draft may be given to the complainant and further orders may
be passed. Although now it is claimed that the amount was paid
due to oral compromise, Exhibit 34 filed before the Judicial
Magistrate, First Class did not claim that there was a
compromise and because of that the amount was being
deposited. In subsequent application (Exhibit 66) filed after
about four years, for the first time it was claimed that there was
oral compromise and because of that the amount was deposited.
Discharge was sought under section 245 of the Cr.P.C. which did
not apply to the proceedings as it was not trial of warrant case.
The application was resisted by the respondent No.2-
complainant and the application came to be rejected on
23.12.2013. Yet another application appears to have been filed
in April 2013 vide Exhibit 68. This time reference was made to
Section 147 of the Negotiable Instruments Act and claim was
made that the amount of cheque has already been paid and the
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complainant has withdrawn the same and that the complainant
is not withdrawing the complaint as he has to recover further
amounts from the accused and thus, there was abuse of process
and it should be declared that there is compromise and orders
be passed accordingly. The petitioner claimed that he was ready
to pay the amount of interest and expenses. The application was
again opposed by the counsel for respondent No.2- complainant
and the Magistrate rejected the application.
14. In the revision, the Additional Sessions Judge found
that the payment of amount of cheque subsequent to the period
provided under section 138 will not exonerate the accused from
the criminal liability although the depositing of amount may
affect the sentence which will be passed.
15. I have already discussed above that once the period
of 15 days as provided in clause (c) of proviso of Section 138, the
offence would stand committed and unilaterally the accused
cannot say that he is depositing the amount and he has right to
walk away. The element of compounding requires two parties
and only because the petitioner is declaring that there is an oral
compromise, is not sufficient. For compounding, it is necessary
that both the sides come before the Court and accept the terms
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of compounding which are required to be placed before the
Court and which are required to be accepted by the Court after
verifying that the compounding is legal as well as voluntary. I
do not find that there is any substance in these Writ Petitions.
16. At the time of arguments, learned counsel for the
petitioner referred to the endorsement below Exhibit 34 made
for the complainant that the complainant received payment of
the amount out of total amount receivable from accused and that
the said amount is not amount of the cheque of the present
matter. Learned counsel submitted that the complainant is
trying to adjust the amount not towards the amount involved in
the complaint concerned but towards other dues. According to
learned counsel, the complainant cannot be allowed to do so in
view of Section 59 of the Contract Act, 1872 which lays down
that where a debtor, owing several distinct debts to one person,
makes a payment to him, either with express intimation, or
under circumstances implying that the payment is to be applied
to the discharge of some particular debt, the payment, if
accepted, must be applied accordingly.
17. The learned counsel submitted that the complainant
cannot be allowed to divert the adjustment of the amount to any
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other dues other than towards cheques involved in the
complaints concerned. I find that, this apprehension raised
before this Court does not appear to have been raised in the
Court of Judicial Magistrate, First Class or the Sessions Court. I
have no reason to doubt that at appropriate stage the Court of
Judicial Magistrate, First Class would refer to the application
Exh. 34 as was filed by the Advocate for accused and would
properly read the same with Section 59 of the Contract Act,
1872. As specific, dispute on that count has not been raised in
Courts below and I refrain from giving any directions.
18. Observations in this judgment based on documents
from Criminal Writ Petition No.196/2014 be read suitably with
reference to the other two Writ Petitions.
19. For reasons mentioned above, these Criminal Writ
petitions do not have any substance and the same are dismissed.
(A.I.S. CHEEMA, J.)
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