5 Oct 2017 1:30 PM GMT
The Supreme Court has clarified that an accused in a case under Section 138 of Negotiable Instruments Act can be discharged even without the consent of the complainant, if the Court is satisfied that the complainant has been duly compensated. It was also held that the normal role of criminal law that composition of offence is possible only with the consent of complainant/victim is...
The Supreme Court has clarified that an accused in a case under Section 138 of Negotiable Instruments Act can be discharged even without the consent of the complainant, if the Court is satisfied that the complainant has been duly compensated. It was also held that the normal role of criminal law that composition of offence is possible only with the consent of complainant/victim is not applicable for cases under Sec.138 of NI Act. This was because the offence under Section 138 was ‘primarily a civil wrong’. Therefore, the power under Section 258 of the Code of Criminal Procedure to stop trial and discharge the accused was available to the Magistrate even though the summary trial under Chapter XXI of Cr.P.C.
The bench consisting of Justices Adarsh Kumar Goel and Uday Umesh Lalit was dealing with the prayer of a person for compounding the offence or in the alternative for exempting from personal appearance. The appellant before the Supreme Court was the accused in the matter. Though the appellant was ready to pay the cheque amount along with interest and costs and thereby to compound the matter, the complainant did not consent to it and therefore the Magistrate proceeded with the matter without exempting personal appearance. The High Court refrained from interfering in the matter, in the light of judgment of the Supreme Court in JIK Industries Ltd v. Amarlal V.Jumani (2012) 3 SCC 255 which held that consent of the complainant was necessary for compounding the offence under Section 138 NI Act.
When the matter reached the Supreme Court, the Court revisited the principles under Section 138 cases, and appointed senior counsel Mr. K.V Viswanathan and Adv.Mr. Rishi Malhotra as amicus curiae to assist the Court in laying down guidelines in the matter. The Court noted that about 20% of cases in criminal courts were matters arising out of Sec.138, and the long pending arrears were choking the system. Hence, the need to encourage the parties to reach amicable settlement was emphasised. The Court also stated that the ultimate objective of the section was to lend credibility to cheque transactions, and to compensate the payee. The punitive element in cheque cases was not that predominant unlike other criminal cases. The Court laid down the following guidelines with regard to conduct of cases under Sec.138:-
The Bench also held that in every complaint under Section 138 of the Act, it may be desirable that the complainant gives his bank account number and if possible e-mail ID of the accused. If e-mail ID is available with the Bank where the accused has an account, such Bank, on being required, should furnish such e-mail ID to the payee of the cheque.
"In every summons, issued to the accused, it may be indicated that if the accused deposits the specified amount, which should be assessed by the Court having regard to the cheque amount and interest/cost, by a specified date, the accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant . If the accused complies with such summons and informs the Court and the complainant by e-mail, the Court can ascertain the objection, if any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case. In such a situation, the accused’s presence can be required, unless the presence is otherwise exempted subject to such conditions as may be considered appropriate. The accused, who wants to contest the case, must be required to disclose specific defence for such contest. It is open to the Court to ask specific questions to the accused at that stage. In case the trial is to proceed, it will be open to the Court to explore the possibility of settlement. It will also be open to the Court to consider the provisions of plea bargaining. Subject to this, the trial can be on day to day basis and endeavour must be to conclude it within six months. The guilty must be punished at the earliest as per law and the one who obeys the law need not be held up in proceedings for long unnecessarily".
The Bench also said it is open to the High Courts to consider and lay down category of cases where proceedings or part thereof can be conducted online by designated courts or otherwise. The High Courts were also directed to consider issuing any further updated directions for dealing with Section 138 cases in the light of judgments of this Court.