Disposed

Kamlesh Chandra Sharma Alias Kamlesh Sharma v. State of U.P. and Another

Allahabad HC17 Jun 2022A482/15065/2022

Case brief

AI extract

What is this about?

The High Court allowed an interlocutory criminal application under Section 482 Cr.P.C. Suitors or cheques. The Court directed the accused to apply for compounding within one month and granted no coercive measures for five months from the order date.

What did the court decide?

No coercive measures for five months; accused directed to apply for compounding.

Kamlesh Chandra Sharma Alias Kamlesh Sharma Vs State of… — Cheque Dishonour | Allahabad HC (2022)

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Court No. - 43

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Case :- APPLICATION U/S 482 No. - 15065 of 2022

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Applicant :- Kamlesh Chandra Sharma Alias Kamlesh Sharma Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sushil Kumar Dubey Counsel for Opposite Party :- G.A.

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Hon'ble Gautam Chowdhary,J.

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Heard learned counsel for the applicant and learned AGA for the State.

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The present Criminal Misc. Application U/s. 482 Cr.P.C. has been filed against the summoning order dated 28.10.2021 passed by Special Chief Judicial Magistrate, Kanpur Nagar, in Case No. 77182 of 2021, Under Section 138 of the N.I. Act, P.S. Govind Nagar, District Kanpur Nagar, pending in the court of M.M.10, Kanpur Nagar.

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I have considered the last submission made by the counsel in the light of the observation made by the Hon'ble Supreme Court in the case of Damodar S. Prabhu Vs. Sayed Babalal H., 2010(5) SCC 663 which read as follows :-

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"17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [Cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act-Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5] :

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"... Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque.

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If we were to examine the number of complaints filed which were compromised' or settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued."

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18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute.

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19. As mentioned earlier, the learned Attorney General's submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for it as soon as the Magistrates take

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cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation, it is generally indicative of some merit in the complainant's case. In such cases it would be desirable if parties choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds, then the matter can be litigated through the specified forums."

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In view of the aforesaid, the submission made by the counsel is well founded.

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It is thus directed that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence, through compromise. On such application being moved the concerned court may take adequate steps in accordance with law in this regard and shall provide further opportunity to the accused which shall not exceed a maximum period of four months from today to make an endeavour in this direction. Thereafter, the court shall pass necessary orders specifically keeping in view the law laid down by the Apex Court in the case of Damodar S. Prabhu (supra) within a period of five months from today.

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If the decision of the Court given in the light of the application does not conclude the proceedings against the accused and they are further required to appear and face the trial, the court shall be at liberty to proceed in accordance with law against the accused and take all necessary steps and measures to procure their attendance as the law permits.

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In the aforesaid period of five months or till the decision given in the light of the application, whichever is earlier, no coercive measures shall be adopted against the accused.

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It is made clear that no application for extension of time shall be entertained if this order is not availed by the accused in the stipulated period of time.

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It is further clarified that for the present this order has been passed only with regard to the accused on behalf of whom this application has been moved in this Court.

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With the aforesaid observations this application is disposed of .

Dt. 17.6.2022

K.C.

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Digitally signed by KAILASH CHANDRA SINGH Date: 2022.06.20 16:02:37 IST Reason: Location: High Court of Judicature at Allahabad

Kamlesh Chandra Sharma Alias Kamlesh Sharma v. State of U.P. and Another

Case brief

What is this about?

What did the court decide?

Kamlesh Chandra Sharma Alias Kamlesh Sharma v. State of U.P. and Another

Case brief

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