Punjab-Haryana High Court
Avtar Singh And Another vs Avtar Singh (Avtar Singh Mangat) on 29 November, 2014
Author: Rekha Mittal
Bench: Rekha Mittal
PARAMJIT KAUR SAINI
CRM-M- 4917 of 2014 -1- 2014.12.10 16:45
I attest to the accuracy and
authenticity of this document
In the High Court of Punjab and Haryana at Chandigarh
Date of Decision:29.11.2014
CRM-M- 4917 of 2014
Avtar Singh and another
---Petitioners
versus
Avtar Singh (Avtar Singh Mangat)
---Respondents
CRM-M- 4918 of 2014
Avtar Singh and another
---Petitioners
versus
Avtar Singh (Avtar Singh Mangat)
---Respondents
Coram: Hon'ble Mrs. Justice Rekha Mittal
Present: Mr.Ramandeep Singh, Advocate
for Mr. Harpreet Singh, Advocate
for the petitioners
Mr.Man Mohan, Advocate
for the respondent
***
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
***
REKHA MITTAL, J.
This order will dispose of CRM-M- 4917 and 4918 of 2014 titled Avtar Singh and another vs. Avtar Singh (Avtar Singh Mangat) as identical questions of law and facts are involved for adjudication.
The respondent filed criminal complaint Nos. 173/4 and 174/4 dated 8.6.2010 under Section 138 of the Negotiable Instruments Act, 1881 CRM-M- 4917 of 2014 -2- (in short "the Act") on the allegations that two cheques bearing No. 589605 dated 10.11.2009 for an amount of Rs. 2,02,802.95/- (subject matter of complaint No. 173/4) and 816316 dated 14.4.2010 for an amount of Rs. 2 lakhs (subject matter of complaint No.174/4) issued by the accused (petitioners herein) in discharge of their liability got dishonoured on presentation to the drawee bank and the petitioners failed to pay the cheque amounts despite receipt of legal notice.
Counsel for the petitioners contends that the criminal proceedings are liable to the quashed as the petitioners offered to pay the cheque amounts and filed an application dated 28.2.2013 before the trial court for the said purpose which was dismissed vide order dated 28.11.2013. It is argued with vehemence that refusal of the respondent to accept cheque amounts or press for bringing the proceedings to its logical end, in the circumstances would be nothing but an abuse and misuse of process of law. For this purpose, he has relied upon judgments of this Court in Balbir Singh vs. M/s Aggarwal Manufacturing Company Crl. Misc. No. M-23421 of 2008 decided on 11.11.2010 and Subhash Chander Makkar vs. Surinder Singh Bedi 2014(1)RCR(Criminal)719. It has been further submitted that even if offence under Section 138 of the Act can be compounded by way of an agreement between the parties but still as the petitioners immediately after their appearance in the trial court had offered to pay the cheque amounts, the proceedings are liable to be quashed.
Counsel for the contesting respondent has submitted that the learned trial Magistrate has recorded cogent reasons for its refusal to accept prayer of the petitioners for permitting them to deposit/pay the cheque CRM-M- 4917 of 2014 -3- amounts and dismissal of the complaint, therefore, the petitioners do not deserve indulgence of this court. For this purpose, counsel has carried me through order dated 28.11.2013 wherein the court has taken note of the fact that initially notice was sent to the accused through registered post, then bailable warrants were issued and later warrants of arrest were issued and eventually proclamation under Section 82 of the Code of Criminal Procedure (in short Cr.P.C.") was issued and immediately after service of proclamation, the accused put in appearance which showed that the accused were aware of pendency of proceedings and in fact pursuing the proceedings secretly. Counsel has strenuously argued that in view of conduct of the accused, they have disentitled themselves to seek any relief by invoking inherent jurisdiction of this court. It is further argued that as the respondent-complainant does not agree with the proposal given by the accused, neither the offence can be allowed to be compounded as has been held by the Hon'ble Supreme Court of India in JIK Industries Limited and others vs. Amarlal V.Jumani and another 2012(1) R.C.R.(Criminal) 822 nor the proceedings can be quashed.
I have heard counsel for the parties and perused the records. Indisputably, the petitioners put in appearance before the trial court on 25.1.2013 and on 28.2.2013, they moved application for permission to deposit the cheque amounts which was decided by the trial court in November 2013. Though the trial court has taken serious note of the fact that presence of the accused/petitioners could not be secured through repeated processes including coercive steps but there is no reference in the order that any of those processes was ever tendered to the CRM-M- 4917 of 2014 -4- petitioners and they refused to accept the same.
The Hon'ble Supreme Court of India in a recent judgment J.V.Baharuni and another vs. State of Gujarat and another 2014(4)R.C.R. (Criminal)696 has issued certain directions to the Magistrates/subordinate courts to make all possible attempts to encourage compounding of offence at an early stage of litigation. It was held that in a prosecution under the Act, the compensatory aspect of remedy must be given priority over the punitive aspect. Though the directions have been issued to the Judicial Magistrates/subordinate courts but this court in an effort to resolve the matter asked the petitioners if they are ready to pay double of the cheque amounts. Counsel for the petitioners, on instructions, submitted that due to his persuasion, the petitioners have agreed to pay double of the cheque amounts in case the proceedings are quashed.
In response thereto, counsel for the complainant-respondent refused to agree to quashing of the proceedings even on payment of double of the cheque amounts with the submissions that there is dispute between the parties with regard to other payments as well.
The question which arises for consideration is whether despite the petitioners agreeing to pay double of the cheque amounts, the proceedings should be allowed to continue.
Chapter XVII of the Act deals with penalties in case of dishonour of certain cheques for insufficiently of funds in the accounts. Section 138 of the Act provides for dishonour of cheque for insufficiency etc. of funds in the account. The person who is deemed to have committed an offence under Section 138 of the Act shall be punished with CRM-M- 4917 of 2014 -5- imprisonment for a term which may extend to two years or with fine which may extend to twice the amount of cheque or with both. One of the punishments provided for commission of offenc is fine which can extend to double of the cheque amount. The Apex Court has held that compensatory aspect of remedy must be given priority over the punitive aspect. The petitioners immediately after their appearance before the trial court offered to pay the cheque amount and they agreed to pay double of the cheque amounts before this court. Under these circumstance, I am of the considered opinion that refusal of the respondent-complainant to accept offer of the petitioners should not deter this court from exercising its inherent jurisdiction in quashing the proceedings. In this view of the matter, it is expedient in the interest of justice that criminal proceedings are put to rest subject to the petitioners depositing double of the cheque amounts in the Registry of this Court within a period of one month.
In view of what has been discussed hereinabove, the petitions are allowed, the criminal complainants No. 173/4 and 174/4, summoning orders dated 28.10.2010(Annexure P-2) and proceedings emanating therefrom are ordered to be quashed subject to the petitioners depositing the amounts in the Registry of this court within the stipulated period failing which the petitions shall be deemed to be dismissed.
(REKHA MITTAL) JUDGE 29.11.2014 PARAMJIT