In the absence of the applicant's counsel due to a strike, the Court did not quash the summoning order but directed the accused to appear within one month to seek an application for compounding the offence under Section 138 NI Act.
Direction for accused to appear and seek compounding; no coercive measures for 5 months or till application decision.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 85
Case :- APPLICATION U/S 482 No. - 21751 of 2022
Applicant :- Amar Kushwaha Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Yashwant Pratap Singh Counsel for Opposite Party :- G.A.
Hon'ble Gautam Chowdhary,J.
Due to strike of the advocates, learned counsel for the applicant is not present.
However, learned A.G.A. is present.
The present 482 Cr.P.C. application has been filed praying for quashing of summoning order dated 5.4.2022 passed by the A.C.J.M., Kasia, Kushinagar in Complaint Case No. 1878 of 2022 (Manoj Kumar Singh Vs. Amar Kushwaha) under section 138. N.I. Act, P.S. Patherwa, District Kushinagar.
All the contentions raised by the counsel for the applicant relate to disputed questions of fact. The court has also been called upon to adjudge the testimonial worth of prosecution evidence and evaluate the same on the basis of various complications of factual details which have been touched upon by the learned counsel. The truthfulness and integrity of material furnished on behalf of the prosecution has been questioned and false implication has been pleaded.
I have considered the submissions made by the counsel that the matter be decided 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 :-
"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] :
"... 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.
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."
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. ?....................
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 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."
In view of the aforesaid, the submission made by the counsel is well founded.
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.
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.
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.
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.
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 u/s 482 Cr.P.C. has been moved in this Court.
With the aforesaid observations this application is disposed of .
Order Date :- 25.8.2022
RPD
Digitally signed by RATAN PRAKASH DWIVEDI Date: 2022.08.26 13:04:46 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether a Section 138 NI Act criminal proceeding can be quashed when all contentions involve disputed questions of fact.
How the Supreme Court's principles in Damodar S. Prabhu apply to an applicant whose counsel is absent.
Whether an accused should be given an opportunity to compound the offence before coercive measures are adopted.
Colour shows how this judgement treated each authority
Damodar S. Prabhu Vs. Sayed Babalal H.Referred¶9
Damodar S. Prabhu Vs. Sayed Babalal H., 2010(5) SCC 663 · Who else cites this
Amar Kushwaha
Gautam Chowdhary
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
