Cheque bounce azruddin case

Nice decision.

Regards,

Shonee Kapoor

harassed.by.498a@gmail.com

The Metropolitan Magistrate's judgment is based on the guidelines framed by Supreme Court in criminal appeal no 963/2010 Damodar S.Prabhu vs Sayed Babalal H.A bold and nice judgment.

The magistrate has no power to impose fine/costs more than Rs.5,000/- under Cr.P.C., and Rs.15 lacs costs for the reason "wasting of court's time" is too high and it would set a bad precedent for even genuine parties concerned.

Mr. Rao,

It seems that you have not gone through the judjement  of Supreme Court titled Damodar S.Prabhu vs Sayed Babalal H.A  properl. In the said acse Hon'ble Supreme Court used the word (cost) not (fine) as you mentioned.Megistrate has rightly exercised his powers in imposing the cost of R.s 15 Lakhs on ex captain and presently member of parliament Mr. Azzrudin .Guidelines issued by the Supreme court are here under 

THE GUIDELINES

(i) In the circumstances, it is proposed as follows: (a) That directions can be given that the Writ of Summons be suitably modified making it clear to the accused that he could make an application for compounding of the offences at the first or second hearing of the case and that if such an application is made, compounding may be allowed by the court without imposing any costs on the accused. 

(b) If the accused does not make an application for compounding as aforesaid, then if an application for compounding is made before the Magistrate at a subsequent stage, compounding can be allowed subject to the condition that the accused will be required to pay 10% of the cheque amount to be deposited as a condition for compounding with the Legal Services Authority, or such authority as the Court deems fit. 

(c) Similarly, if the application for compounding is made before the Sessions Court or a High Court in revision or appeal, such compounding may be allowed on the condition that the accused pays 15% of the cheque amount by way of costs. 

(d) Finally, if the application for compounding is made before the Supreme Court, the figure would increase to 20% of the cheque amount. 

Let it also be clarified that any costs imposed in accordance with these guidelines should be deposited with the Legal Services Authority operating at the level of the Court before which compounding takes place. For instance, in case of compounding during the pendency of proceedings before a Magistrate's Court or a Court of Sessions, such costs should be deposited with the District Legal Services Authority. 

Likewise, costs imposed in connection with composition before the High Court should be deposited with the State Legal Services Authority and those imposed in connection with composition before the Supreme Court should be deposited with the National Legal Services Authority

Apart from the above citation submitted by Shri Goyal, Mr Rao being an advocate you should refresh with the latest amenments in the law . 

The limit of fine of five thousand has been removed now by amendment in law.

Bhaskaran case of SC was in 1999 which dealt about fine liimit of FIN THOUSAND  and for the first time give a theory of FIVE JURISDICTIONS .

1) Thereafte the law is amended in 2003 and fine limit has been made twice the amount of cheque.

2) Similarly in 2010 the SC in HERMANN case and many High courts thereafter fine tuned the five juridstiction theory which makes it entirely in favour of accused.

Following is the amendment in cheque law in 2003.=

[143. Power of Court to try cases summarily.

(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing.

(3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint.]

1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003).

(1) I have gone through the reported judgment of the SC (Full Bench) in Damodar S.Prabhu as cited by Shri Goyal. The Guidelines issued in the said judgment showcasing the mindset of the Supreme Court to deprecate the later settlements of Cheque amounts by adopting dilatory tactics by the accused by making an Application for Compounding of offences.

(2) But in my humble opinion, the said judgment is not applicable to the facts and circumstances of Mr.Azharuddin's case, since he only informed the trial Court that an OUT OF COURT SETTLEMENT (between the parties) was arrived at for some amount.

(3) The Supreme Court has made it a law vide its Guidelines only to impose costs only for those who file Compounding Applications before (i) the trial Courts at the preliminary stage of first hearing or the second hearing OR (ii) after conviction before lower appellate courts OR (iii) the Supreme Court on percentage basis.

(4) But as per the news reported, Mr.Azharuddin HAS NEITHER FILED any Compounding Application NOR PRAYED the Magistrate Court to compound his offence. Under circumstances, how can the Magistrate could impose Costs by following the Guidelnes of the SC?

(5) The phraseology "Wasting of Court's Time" is never used by the Supreme Court in its Guidelines to make the Magistrate to apply it to Mr.Azharuddin's case. Thus the Magistrate has not properly applied his mind in imposing Costs on the accused and it only shows his over-anxiety in imposing heavy costs for the sake of nothing.

Being an advocate if you want to critically analise any judgement you should go through actual court documents and should not react on basis of press reports.

Reporters are not legal persons and hence they use words as they understand the situation at spur of moments. Even if you go thorough the newspaper reports in this case there are no of different versions of same story.

In short the NI 138 case is criminal case and unless dismissed or withdrawn the accused can not eascate conviction even on compromise. So as per SC direction TEN PERCENT penalty has been imposed.

Do you mean to say I should leaving all my work at Chennai I should go to the particular Court and take the case bundle and go through all the records and documents of Mr.Azharuddin's case and then I should take up this query for answering?

I have been seeing your attitude of criticizing me without disclosing your real identity of your full name. You have no business to attack me personally. If you are ready to accept my comment, its alright. If you want to brush aside my comments, it is also alright. But please use temperate language before criticizing a fellow professional.

In fact, I would like to ask you this, did you go through all the Court records and evidences of Mr.Azharuddin's case before opening this query? How could you say the advocate for the accused had not taken proper steps?

You are the opener of this query and that doesn't mean that I should endorse your view or others supporting views that the Magistrate was quite right in imposing costs. This platform is to ventilate both views. I have not simply told my view but I have also substantiated with the reason for my view. Law is not arithmetic to say always, "two plus two is four".

I would also like to say that we should not underestimate the reporters. Most of the popular dailies, they are working under Legal Correspondents and assisted by Counsels of either side in case of clarifications. As you have rightly admitted, when the news is same as reported in all the newspapers, then what fault you have found in my comprehension of Mr.Azharuddin's case?

I still make bold to stick to my earlier stand that the Delhi Magistrate was quite wrong in imposing costs on Mr.Azharuddin citing the said SC Judgment.