Allowed

Ashok Jaynrayan Zawar v. State of Mah and Ors.

Bombay HC27 Mar 2012REVN/140/2010

Case brief

AI extract

What is this about?

In a criminal revision regarding cheque bouncing, the High Court allowed compounding and acquitted the accused after confirming payment of settlement dues. It modified the previous impugned orders, adjusted penalty costs against the State Legal Services Authority, and directed lower courts to include cost guidelines in future summons.

What did the court decide?

Offence under Section 138 NI Act allowed to be compounded; petitioner acquitted; 10% cheque amount deducted for State Legal Services Authority; balance refunded; impugned judgments set aside; lower co

Ashok Jaynrayan Zawar Vs State of Mah and Ors. — Cheque Dishonour | Bombay HC (2012)

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Cri.Revn.Appln No.140/2010 with Cri. Appln. No.5632/2011

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IN THE HIGH COURT OF JUDICATURE OF BOMBAY,

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BENCH AT AURANGABAD

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CRIMINAL REVISION APPLICATION NO.140 OF 2010 WITH CRIMINAL APPLICATION NO.5632 OF 2011

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Mr. Ashok s/o Jaynarayan Zawar ... PETITIONER

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VERSUS

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The State of Maharashtra & anr. ... RESPONDENTS

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Shri R.F. Totla, Advocate for petitioner Shri N.B. Patil, A.P.P. for respondent No.1. Mrs. S.T. Jadhav, Advocate holding for Shri P.D. Suryawanshi, Advocate for respondent No.2.

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CORAM : U.D. SALVI, J.

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DATED : 27th March, 2012.

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PER COURT:

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Heard. Perused.

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Parties submit that the petitioner/ accused has paid an amount of Rs.9,51,002/- to the respondent No.2/ complainant towards full and final settlement of all the claims arising out of the cheque in question. The respondent No.2 has issued a letter dated 23/11/2011 to their District Marketing Officer, Jalna about the said payment under one time settlement scheme and directed him to

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Cri.Revn.Appln No.140/2010 with Cri. Appln. No.5632/2011

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withdraw the proceedings. Accordingly, it is revealed that the District Marketing Officer, Jalna wrote letter dated 1/12/2011 to the Advocate of the respondent No.2, to get the proceedings terminated. Cognizance of these facts was taken by this Court vide compromise purshis dated 19/12/2011 and the petitioner was reminded of his obligation to deposit 15% of the cheque amount in the Court as costs before compounding of the offence vide order dated 10/1/2012. In reference to this obligation, learned Advocate for the petitioner/ accused has invited the attention of this Court to the guidelines laid down by the Hon’ble Apex Court in Damodar Prabhu’s case [Damodar S. Prabhu Vs. Sayed Babalal H : 2010 AIR (SC) 1907] in order to invoke the discretion of this Court either to exempt the petitioner/ accused from the payment of the said costs or to reduce the costs with regard to the specific facts and circumstances of the case.

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The Hon’ble Apex Court has revealed its mind regarding the guidelines in para No.15 of the said judgment as under :

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“15. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delayed compounding of the offence.

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Cri.Revn.Appln No.140/2010 with Cri. Appln. No.5632/2011

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It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however, belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed :-

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THE GUIDELINES

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(i) In the circumstances, it is proposed as follows:

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(a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the Court without imposing any costs on the accused.

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(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit.

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(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs.

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(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount.

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Cri.Revn.Appln No.140/2010 with Cri. Appln. No.5632/2011

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Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate’s Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. Likewise, costs imposed in connection with composition before the High Court should be deposited with the state Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority.”

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The Hon’ble Apex Court also gave freedom to the courts below to reduce the costs with regard to the specific facts and circumstances of a case on recording reasons in writing for such variance.

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Incorporation of clarification in the writ of summons that

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he could make an application for compounding of the offences at first or second hearing of the case and that if such an application is made, compounding may be allowed by the Court without imposing any costs on the accused is meant for apprising the accused of the incident of cost. In the present case, the application is not made for compounding at the first or second hearing of the case. It is true that the directions issued by the Hon’ble Apex Court ought to be given effect to prospectively and in the instant case, there was

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Cri.Revn.Appln No.140/2010 with Cri. Appln. No.5632/2011

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no summons of the kind described in the guidelines was issued to the accused. However, a fact remains that these guidelines saw the light of the day when the judgment in Damodar Prabhu’s case (supra) was pronounced on 5/3/2010, thereby making it known to the legal fraternity. This happened prior to the pronouncement of the judgment in Criminal Appeal No.77/2009 on 30/4/2010. The petitioner/ accused was represented by an Advocate in the said appeal and as such, it is not open for the petitioner/ accused now to say that he was ignorant of the said guidelines before the pronouncement of the judgment in Criminal Appeal No.77/2009. He ought to have moved an application for compounding before the judgment was pronounced in the said appeal. Having not done so, he could be said to have continued the lis at the first instance and made himself susceptible to the rigour of sub-clause (b) of Clause (i) of the guidelines. Moreover, the perusal of the impugned judgments reveals that the cheque in question came to be issued in plain and simple commercial transaction of the fertilizers. Considering these facts and circumstances, the petitioner/ accused remains under obligation to pay 10% of the cheque amount as costs and deserves no further reduction in the costs.

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It is pointed out that the amount of Rs.1,37,976/- being the 15% of the cheque amount has been already deposited in this

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Cri.Revn.Appln No.140/2010 with Cri. Appln. No.5632/2011

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Court in deference to the order dated 10/1/2012. Considering

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these facts and circumstances, the following order is passed:

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Compounding of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 is allowed. Judgment and order dated 18.9.2009 passed by the learned Judicial Magistrate, First Class, Jalna in S.T.C. No.1283/2006 as well as the judgment and order dated 30.4.2010 passed by the Extra Joint Adhoc Additional Sessions Judge, Jalna in Criminal Appeal No. 77/2009 are set aside. The petitioner/ accused is acquitted of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The learned Sessions Judge, Jalna is directed to refund the amount of Rs.5,25,000/- deposited by the petitioner/ accused from time to time in the said appeal along with interest, if any, to the petitioner/ accused. 10% of the cheque amount i.e. Rs.91,984/- from the amount already deposited in this Court shall enure to the benefit of the State Legal Services Authority, High Court, Aurangabad. The balance therefrom shall be refunded to the petitioner/ accused. Registrar to issue directions to all the Judicial Magistrates in the State of Maharashtra to incorporate in the Writ of Summons issued by them in the cases under Section 138 of the Negotiable Instruments Act, 1881, the

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Cri.Revn.Appln No.140/2010 with Cri. Appln. No.5632/2011

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clarification as stipulated in the guidelines given in Damodhar Prabhu’s case.

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Criminal Revision Application No.140/2010 as also Criminal Application No.5632/2011 stand disposed off accordingly.

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Parties to act on authenticated copy of this order.

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fmp/crra140.10

Ashok Jaynrayan Zawar v. State of Mah and Ors.

Case brief

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Ashok Jaynrayan Zawar v. State of Mah and Ors.

Case brief

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