Gauhati High Court
Md. Altaf Hussain And Anr vs The State Of Assam on 6 May, 2019
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
Page No.# 1/3
GAHC010087312019
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.Pet. 434/2019
1:MD. ALTAF HUSSAIN AND ANR.
S/O LATE ALAFUDDIN, R/O WARD NO. 1, BONGAIGAON TOWN, P.O. AND
P.S.-BONGAIGAON, DIST-BONGAIGAON, ASSAM, PIN-783380
2: M/S QUALITY HIRE PURCHASE CO.
PRIYA MARKET COMPLEX
KALAPAHAR
GUWAHATI-780018
DIST-KAMRUP(M)
ASSAM
REPRESENTED BY ITS MANAGER
SRI GOBINDA DA
VERSUS
1:THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MR J ISLAM
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
Date : 06-05-2019 Petitioners are represented by learned counsel, Mr. MR Islam. State respondent is represented by Mr. BB Gogoi, learned Additional Public Prosecutor, Assam. Both the parties are personally present before the Court in accordance with the order, dated 26-04-2019 along with their learned counsel.
By this petition filed, under Sections 397/401, read with Section 482 Cr.P.C., the petitioner has sought for quashment of the judgment and order, dated 22-01-2015, passed by learned Page No.# 2/3 Judicial Magistrate, First Class, Kamrup (M), Guwahati, in CR Case No. 3326 of 2008, convicting the petitioner No. 1 and sentenced him to undergo simple imprisonment for 1 month and to pay a fine of Rs.30,000/-, for the offence punishable under Section 138 of the NI Act as well as the judgment and order, dated 04-01-2017, passed by the learned Additional Sessions Judge No. 3, Kamrup (M), Guwahati, in Criminal Appeal No. 11/2015, reducing the substantive sentence to 10 days' simple imprisonment.
I have perused the petition including the annexures furnished thereto and the orders, passed by the learned Judicial Magistrate, First Class, Kamrup (M), Guwahati as well as Additional Sessions Judge No. 3, Kamrup (M), Guwahati.
I have also heard the learned counsel aforementioned.
On examination of the materials placed before this Court, it is found that the accused- petitioners are not, in fact, challenging the findings recorded in the judgment of the learned trial Court. What the subject-matter of challenge in this petition is that while the matter was appealed against, the Additional Sessions Judge No. 3, Kamrup (M), Guwahati, in the said appeal, passed the sentence of simple imprisonment for 10 days instead of 1 month, as awarded by the learned Court below.
Since, the matter has been settled between the parties after the above judgments, as has been submitted by both the parties, in person, before this Court that the matter be disposed of in terms of the settlement. In the considered view of this Court, this case can be disposed of in view of the law laid down by the Hon'ble Supreme Court in the case of Meters and Instruments Private Limited & Ors. -vs- Kanchan Mehta, (AIR 2017 SC 4594), wherein, the Hon'ble Supreme Court has laid down that offence under Section 138 of the Negotiable Instrument Act being in the nature of civil wrong, can be settled, of course, consent of the complainant is necessary. However, it is made clear in the aforesaid judgment that even if there is no consent, then also for the ends of justice, if the Court deems fit, the matter can be settled.
The Hon'ble Supreme Court in the case of Kanchan Mehta (supra), at paragraph 18, has observed as follows:
"18. From the above discussion following aspects emerge:
i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is "preponderance of probabilities". The same has to be normally tried summarily as per Page No.# 3/3 provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.
ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.
iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.
iv) Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 I.P.C. and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.
v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonour of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances."
In view of above, taking recourse to the law laid down in Kanchan Mehta (supra), this Court is of the view that further proceeding with the judgment passed by the learned trial Court will be an abuse of the process of the Court. Accordingly, the settlement between the parties is accepted and the matter stands disposed of with direction that no further follow up action in respect of the judgments of the Courts below, referred to above, be taken. The criminal revision petition stands disposed of accordingly at this motion stage itself.
JUDGE Comparing Assistant