138 case

Vishal (Querist) 16 November 2012 This query is : Resolved
A cheque was given for 25,39,549 (against 5 particular bills with evidence) bounced on 1st december and a substitute cheque was offered. Complainant accepted the cheque and banked which bounced also but RTGS made.

The complainant filed 138 for first cheque against other disputed debt claiming both cheques are part payment.

Can the proceeding be quashed?

Is the case already compounded by acceptance and banking of the second cheque ?

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Devajyoti Barman (Expert) 16 November 2012
The proceeding is maintainable. It can not be quashed.

Vishal (Querist) 16 November 2012
Did the complainant not forfeit his right to file 138 by accepting a substitute cheque for the same amount ?

Kiran Kumar (Expert) 16 November 2012
the subsequent default gives cause of action for another case.

it was only the first cheque compounded, for second cheque fresh offence was committed.

V R SHROFF (Expert) 16 November 2012
138 NI ACT is applicable , in both cases, as both were pd towards legal dues.

V R SHROFF (Expert) 16 November 2012
Q:Did the complainant not forfeit his right to file 138 by accepting a substitute cheque for the same amount ?

A: In that case every reply of NI notice will be with another chq, that will bounce , repeating every time!!

not possible.

Vishal (Querist) 17 November 2012
The second 138 notice was satisfied by RTGS within 15 days and the complainant has not pursued the case.

The question remains if there is automatic compounding giving immunity from prosecution for original cheque. Since the banking of substitute cheque had the consent of the injured.

70. Compounding as codified in Section 320 of the Code has a historical background. In common law compounding was considered a misdemeanour. In Kenny's `Outlines of Criminal Law' (Nineteenth Edition, 1966) the concept of compounding has been traced as follows:-
"It is a misdemeanour at common law to `compound' a felony (and perhaps also to compound a misdemeanour); i.e. to bargain, for value, to abstain from prosecuting the offender who has committed a crime. You commit this offence if you promise a thief not to prosecute him if only he will return the goods he stole from you; but you may lawfully take them back if you make no such promise. You may show mercy, but must not sell mercy. This offence of compounding is committed by the bare act of agreement; even though the compounder afterwards breaks his agreement and prosecutes the criminal. And inasmuch as the law permits not merely the person injured by a crime, but also all other members of the community, to prosecute, it is criminal for anyone to make such a composition; even though he suffered no injury and indeed has no concern with the crime."

71. Russell on Crime (Twelfth Edition) also describes:-
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"Agreements not to prosecute or to stifle a prosecution for a criminal offence are in certain cases criminal".
(Chapter 22 - Compounding Offences, page 339)
72. Later on compounding was permitted in certain categories of cases where the rights of the public in general are not affected but in all cases such compounding is permissible with the consent of the injured party.

Vishal (Querist) 17 November 2012
Mr. Shroff, the case you propose is that the injured will continue to willingly accept substitute bouncing cheques indefinitely.

V R SHROFF (Expert) 17 November 2012
Vishal, ,
iN ONE OF MY 138 CASE, THE ACCUSED PAID THE CHQ , in compromise / compounding the complaint. It bounced.

I was for Complainant, and accused was convicted. He appealed.

amount of cheque must be PAID , within 15 days of notice.
If remains unpaid , for any reason, [ insufficient fund or stopped payment or any other reason, due to fault of accused, that amount is NOT PAID, and it still attract 138. The position of accused is unchanged, just by issuing a leaflet of cheque knowing very well, it will bounce.

Compounding will be in Court Room, Certainly not during Notice Period. Compounding with clear understanding that the amount will be paid/ not a bounce cheque. Issue of another cheque will not acquit the accused. Offence was already committed, once amount remained unpaid.

Issue of another cheque by accused does not mean amount is paid, unless it is realised.