Whether complaint of 138 stands dismissed on payment of cheque amounts on first hearing by accused?
Rajat sahotra
(Querist) 14 July 2014
This query is : Resolved
respected experts
The accused has made the payment of cheque amounts by demand drafts of 2 complaints on first hearing of the case to the counsel of the complainant. The DDs were accepted by the counsel and the party and the counsel of the complainant gives statement in written to the court that the complaints shall be withdrawn in LOK ADALAT on Next hearing.
On the next hearing at LOk adalat they refused to withdraw the complainants and ask for interest amount on the cheque amounts for the delay payments and litigation charges. DDs in complainants possession and encashed.
The magistrate is also adamant and says the offence under sec 138 of NI Act does not end even if the payment is made and ask the accused for settlement of accounts and again fix the cases in lok adalat for withdrawal of complaints. Magistrate did not pressed the complainant to withdraw the complaints when payment has already been received.
Now whether on payment of cheque amount on first hearing ends the case of the complainant?
whether interest on cheque amounts can be recovered through 138 complaints?
whether magistrate has power to dismiss the complaints when the payment of cheque amounts has already been made by accused through DDs. on first hearing? if possible site some law.
T. Kalaiselvan, Advocate
(Expert) 15 July 2014
The payment by the accused of the full cheque amount during the pendency of trial under sec 138 does not absolve the accused of his liability for the offence of dishonour of cheque. However, the courts take a lenient view in such cases and the accused is set free or punished lightly.
The Delhi High Court has also held that if during the pendency of a dispute under sec 138 NI Act the parties enter into a settlement, it should be respected by the courts as proceedings under sec 138 are quasi criminal in nature.
AIR 2007 (DOC) 264 (DEL.)
a joint compromise petition filed may be considered as a mitigating factor while awarding the punishment for offence.
Advocate. Arunagiri
(Expert) 15 July 2014
You can file a memo of compromise in the trial court. This will be recorded by the court and the accused will be set free.
Sankaranarayanan
(Expert) 15 July 2014
Well advised by sri Kalaiselvan and srri arunagiri I do stand on the experts view
Nadeem Qureshi
(Expert) 15 July 2014
Dear Querist
you should settle the matter amicably because now you are not in possision to fight the case.
ajay sethi
(Expert) 15 July 2014
agree with experts
Rajendra K Goyal
(Expert) 15 July 2014
Try to have amicable settlement, agree with the advise of expert T. Kalaiselvan, Advocate.
P. Venu
(Expert) 15 July 2014
Offence Section 138 is compoundable. As the accused has settled the debt, the complainant can compound.
Satya nand aggarwal
(Expert) 16 July 2014
as per your query it can be gathered that the complaint must be dismissed , but if the complinant do not correlate compromise with disputed amount then , the court cannot compel he complainant to withdraw the case as per recent judgmenet of sc mention ed here
Offence under Section 138 of N.I. Act is compoundable – over-rides section 320 (9) Cr.P.C. of Section 320 Cr.P.C. – that does not mean that it obliterate all statutory provisions of 320 Cr.P.C. – relating to mode and manner of compounding of offence –in future section 4 (2) Cr.P.C, the basic procedure of compounding of offence laid down on Section 320 Cr.P.C. of the code apply to compounding of offence under NIA – main principle of such compounding namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor the same are substituted by virtue of 147 of N.I. Act. 2012(2) Civil Court Cases-Page -128 (SC)
T. Kalaiselvan, Advocate
(Expert) 17 July 2014
Expert Mr. Satyanand Agarwal has given much more detailed explanation, hope this solves your query.(?)
Guest
(Expert) 17 July 2014
How you are related with the case is not clear.
