Quashing of complaint under sec. 138 ni act
Querist :
Anonymous
(Querist) 21 October 2011
This query is : Resolved
Sir,
In a cheque bounce case filed against a person for a meagre amount,the accused is now willing to settle the amount together with the minimum litigation expenditures to the complainant. But, the complainant is trying to extract huge amount(5 times the cheque value) from the accused.The case is in the DW's stage. Kindly advise me whether the complaint can be quashed before High court on this ground? or any other remedy available to the accused? Im the counsel for the accused
M.Sheik Mohammed Ali
(Expert) 21 October 2011
you could not quash the case, but you will file a petition to the court regarding ready to pay the meagre amount.
ajay sethi
(Expert) 21 October 2011
deposit the cheque amount in court . the fact that you have deposited cheque amount proves your bonafides . the court will take take into considerationwhile paassing judgement . court lmay show leniency
Querist :
Anonymous
(Querist) 21 October 2011
Sir,
Under what provision, the said petition can be filled. Pls guide me sir. What will be the effect of it. It is said that the judge will refer the matter to the Lok Adalat or mediation, only if both the parties are willing for the same. But that complainant is very adameant. He wants to punish the accused. What can be done now?
Querist :
Anonymous
(Querist) 21 October 2011
Sir,
The complainant not his counsel has appeared for the hearings for the 2 to 3 hearings. When I have filed a memo requesting to refer the matter to adalat for mediation. The judge is insisting for the appearance of the complainant or his counsel. The Judge is not at all receiving my memo. My party is ready to settle the matter. What should be done now?
ajay sethi
(Expert) 21 October 2011
have you informed court your willingness to deposit cheque amount in court/
you deposit the amount .
Nadeem Qureshi
(Expert) 21 October 2011
Dear Friends
if your client is ready to pay the chaeque amount then file an application before the magistrate for compounding the offence.
the offence is compoundable at any stage.
sc held in 2010 that if the accused is ready to pay the cheque amount before the trial court then compound the offance with 10% of cost of the cheque amount. i will be send full judgement copy of the judgement. no need to worry
Querist :
Anonymous
(Querist) 21 October 2011
Dear Friend,
I have informed the court about my willingness to settle the amount to the Judge. But the complainant is very adamant. He wants to punish the accused or tries to extract huge amount from him. What should I do now? Pls suggest me. Is there any ruling from any court in this point? Pls enlighten me.
Ravikant Soni
(Expert) 21 October 2011
In Damodar vs sayad honble Apex court passed guidelines for the issues similar as raised by author.
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.
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(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.
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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.
Ravikant Soni
(Expert) 21 October 2011
Unlike Section 320 of the CrPC, Section 147 of the Negotiable Instruments Act provides no explicit guidance as to what stage compounding can or cannot be done and whether compounding can be done at the instance of the complainant or with the leave of the court.
So an accused sole alone can move for compounding the offence by depositing cheque amount and cost.
So i suggest you to apply the court with proposing to deposit cheque amount with cost refering this rulling.
prabhakar singh
(Expert) 21 October 2011
Expert Ravikant Soni has rightly replied.
Advocate Bhartesh goyal
(Expert) 21 October 2011
Yes make a proposal in court that you are ready to deposite cheque amount alongwith 10% cost. court may consider your proposal.
Raj Kumar Makkad
(Expert) 21 October 2011
I myself have got applied the afore-cited case law in many cases wherein there is no need of consent of complainant in such matter. If complainant refuses to receive the amount of cheque with 10% penalty, such amount shall remain deposited with court and complainant shall be at his liberty to withdraw his amount or not.
