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138 ni act conviction

(Querist) 24 December 2011 This query is : Resolved 
SIR,
I AM SICK LADY AGED 55 CONVICTED IN 138 BY LOWER COURTS ORDER: CHEQUE AMT 2.5 LACS PLUS 4 MONTHS CONVICTION, NOW AT HIGH COURT JUDGEMENT RESERVED. IF I PAY THE CHEQUE AMT.THE PUNISHMENT WILL BE SET ASIDE ?

SHANTI BAI
DEFENSE ADVOCATE.-firmaction@g (Expert) 24 December 2011
If the other side agrees than you can seek consent order.
Sudhir Kumar, Advocate (Expert) 24 December 2011
high court order need tobe seen, before any sund advise
M.Sheik Mohammed Ali (Expert) 24 December 2011
if you are ready to pay the said amount with cost before the court, the judge may consider.
Sankaranarayanan (Expert) 24 December 2011
if the opponent agreed it then you can put a petition and get consideration from the judge
Deepak Nair (Expert) 24 December 2011
Yes. The proceedings under section 138 are not that strict like the serious crimes under IPC. This is more or less like civil case under criminal proceedings. The offence is very much compoundable.
The very purpose of initiating the legal action by the Complainant was to recover money due by you to the Complainant.
Try to speak to the complainant and convince him for amicable settlement.
I think the complainant may agree if he receives the money with a reasonable cost/interest. It may be difficult, since the complainant too have spent a lot of amount fighting the case from magistrates court to the high court.
Shailesh Kr. Shah (Expert) 24 December 2011
Settle amicable with complainant for compounding.
Guest (Expert) 24 December 2011
Judgment reserved construes that the case has already been concluded and decision made but only pronouncement remains to be made. That may not automatically set aside the punishment, if in between some mutual agreement has been arrived at between the parties to the case. That depends solely on the discretion of the HC whether that admits or not the mutual settlement arrived at between the parties before pronouncement of the judgment.

You may try your luck. Of course, I hope the HC may not obstruct on the mutual settlement of the case, as the sole aim of the court is to provide justice to the party concerned.
Deepak Nair (Expert) 24 December 2011
Rightly advised by Dhingra Sir
A Truthseeker (Expert) 24 December 2011
both in CamexLtd.v Nagarjuna Finance Ltd.(2000)7SCC388 and O.P.Dholakiav State of Haryana (2000)1SCC762, composition was allowed on the prayer of the drawers.

when an accused has been convicted and an appeal is pending, then, in view of the provision of sub-sec. (5) of sec.320 of the CRPC. no composition shall beallowed without the leave of the court before whom the appeal is pending.Sub-section (6) of sec.320 CR.PC.provides that a HIGH COURT or court of Sessions acting in exercise of its powers of revivisionunder section 401 of the CRPCmay allow the prayer for compounding th e offence. sec147 of the NI Act is subject to sub-secs .(5) &(6)of sec. 320 of the Cr.PC.this means that though an offence under the NI Aci is compoundable ,if composition is sought for in appeal or in revision after the trial cort had convicted the accused, then leave of the court would be necessary. but it is desirable that the higher court should deal with the composition-petitionleniently and unless any special reason to do otherwise shall allow the parties to compound the offence.
Shonee Kapoor (Expert) 24 December 2011
Agree with Ld. Dhingra.

Regards,

Shonee Kapoor
harassed.by.498a@gmail.com
Guest (Expert) 25 December 2011
@ S/Shri Deepak Nair & Shonee Kapoor,

Thanks for endorsing my views please.
prabhakar singh (Expert) 25 December 2011
Leave of the court is required for compounding before any judgement is delivered by the court.
DEFENSE ADVOCATE.-firmaction@g (Expert) 25 December 2011
For compounding complainant has to agree than only permission of court can be sought and granted .Accused can not seek it as a right.

Only Punjab and Haryana High courts have directed compounding for smaller amounts as a rule in cheque cases.
Dr J C Vashista (Expert) 26 December 2011
I agree with Mr. Dhingra. However, the High Court may allow compounding subject to cost of 20% of cheque amount to be deposited with Legal Service Authorities.
Devajyoti Barman (Expert) 28 December 2011
If the other party disagrees , even if you pay the conviction would not be set aside on this ground alone.
R Trivedi (Expert) 16 January 2012
This is the compoundable offense. At any stage even at the Apex Court Appellate stage, it can be compounded. No court has any discretion on this matter. Conviction has to be necessarily set aside if compounded. Yes, cost can be slapped by courts. advocate.dma@gmail.com


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