Applicant/plantiff not withdrawing the case of ni act
P GOYAL
(Querist) 31 May 2013
This query is : Resolved
Plantiff Mrs X filed a case of cheque bounce aginst Mr Y for Rs 2 Lakh.
Though Mr Y had already paid Rs 50 k He offered the plantiff balance amount to avoid any litigation as Mr Y is a PSU employee staying at at far away city.
The court was ruunning vacant and on a particular court date there was strike in the court. Therefore Mr Y entered into any agreement out of the court with Mrs X and paid the balance amount via DD. Mrs X agreed to withdraw the case (mentioned in agreement). Now Plantiff Mrs X is not withdrawing the case and taking new court dates. What are the remedy available to Mr Y. Should he still have to appear befor court and take bail or he can make representation before court through his counsel that he has already settled the matter and it is now plantiff who is dragging the matter. Please advice.
Thanks
ajay sethi
(Expert) 31 May 2013
make an application for compounding before the court . enclose proof of payment made to Plaintiff .
R.K Nanda
(Expert) 31 May 2013
plaintiff will have to withdraw her case
as she has got 2 lacs.
P GOYAL
(Querist) 31 May 2013
thank u sethi sir and nanda sir.
I would like to know whether accused can make an application for compounding. if yes, how he can do that, himself writing to the court or through the consel. Local counsel advising for bail and then deciding the matter in court itself. How the plaintiff can be made to withdraw her case.
ajay sethi
(Expert) 31 May 2013
you have engaged a lawyer to defend you . he will guide you . written application has to be made . agree to pay compounding charges .
you cant force complainant to with draw case . the offence is completed when you did not make payment within period of 15 days from receipt of notice
ajay sethi
(Expert) 31 May 2013
Supreme Court of India
Damodar S.Prabhu vs Sayed Babalal H. on 3 May, 2010
Bench: K.G. Balakrishnan, P. Sathasivam, J.M. Panchal
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 963 OF 2010
[Arising out of SLP (Crl.) No. 6369 of 2007] Damodar S. Prabhu ... Appellant (s) Versus
Sayed Babalal H. ... Respondent (s) WITH
CRIMINAL APPEAL NOS. 964-966 OF 2010
[Arising out of SLP (Crl.) Nos. 6370-6372 of 2007] O R D E R
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.
18
(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.
19
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.
16. We are also in agreement with the Learned Attorney General's suggestions for controlling the filing of multiple complaints that are relatable to the same transaction. It was submitted that complaints are being increasingly filed in multiple jurisdictions in a vexatious manner which causes tremendous harassment and prejudice to the drawers of the 20
cheque. For instance, in the same transaction pertaining to a loan taken on an installment basis to be repaid in equated monthly installments, several cheques are taken which are dated for each monthly installment and upon the dishonor of each of such cheques, different complaints are being filed in different courts which may also have jurisdiction in relation to the complaint. In light of this submission, we direct that it should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction. Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed under Section 200 of the CrPC. If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively.
17. We are also conscious of the view that the judicial endorsement of the above quoted guidelines could be seen as 21
an act of judicial law-making and therefore an intrusion into the legislative domain. It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act. We have already explained that the scheme contemplated under Section 320 of the CrPC cannot be followed in the strict sense. In view of the legislative vacuum, we see no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act. The graded scheme for imposing costs is a means to encourage compounding at an early stage of litigation. In the status quo, valuable time of the Court is spent on the trial of these cases and the parties are not liable to pay any Court fee since the proceedings are governed by the Code of Criminal Procedure, even though the impact of the offence is largely confined to the private parties. Even though the imposition of costs by the competent court is a matter of discretion, the scale of costs has been suggested in the interest of uniformity. The competent Court can of course reduce the costs with regard to 22
the specific facts and circumstances of a case, while recording reasons in writing for such variance. Bona fide litigants should of course contest the proceedings to their logical end. Even in the past, this Court has used its power to do complete justice under Article 142 of the Constitution to frame guidelines in relation to subject-matter where there was a legislative vacuum.
18. The present set of appeals are disposed of accordingly. .............................. CJI
(K.G. BALAKRISHNAN)
............................... J.
(P. SATHASIVAM)
............................... J.
(J.M. PANCHAL)
New Delhi
May 03, 2010
23
DEFENSE ADVOCATE.-firmaction@g
(Expert) 31 May 2013
1) Compounding even as per above citation is by consent of complainant , only accused can not force compromise.
2) This is a criminal case and once process is issued no out of court settlement has any meaning or value.
3) While making the payment even by DD the accused should have asked the complainant to move application in the court for withdrawal of the case. He has to suffer for this lapse.
4) If he had used services of an advocate while making payment such accident would not have happened.
5) Only course is go on following with the complainant to withdraw the case otherwise trial has to be faced.
6) Cheque law is for punishment and not for recovery of money.
CHEQUE ACCUSED MAKE SUCH BLUNDERS AND SUFFER FOR THAT.
CHEQUE BOUNCE CASES HAVING ANY FACTUAL MATRIX CAN BE WON BY THE ACCUSED WITH PROPER EXPERT LEGAL AID.
R.K Nanda
(Expert) 31 May 2013
complainant can also file application to
w/d her case as she got money.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 31 May 2013
THIS IS THE WHOLE PROBLEM THAT COMPLAINANT HAS GOT MONEY BUT OUT OF COURT AND NOT WITHDRAWING THE CASE.
Raj Kumar Makkad
(Expert) 01 June 2013
Even accused can file the application before the court in view of judgment Damodar Prabhu (supra).
DEFENSE ADVOCATE.-firmaction@g
(Expert) 01 June 2013
Defense advocate is like a JOKER in a circus who is center of laughs by every one BUT he knows the actions of all the actors better than them and mimics them with accuracy.
Due to our claim that we win every cheque bounce case so we get brick bates,ridicule regularly but we take it as an appreciation of EXPERTISE.
On same lines this is contrary view on this problem and see that HIGHER COURTS has said in such matters.
SUPREME COURT IN 2001.
So far as the criminal complaint is concerned, once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Court trying the offence. But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the Court or that an order of quashing of criminal proceeding, which is otherwise unsustainable in law, could be sustained because
of the deposit of money in this Court.
In this view of the matter, the so-called deposit of money by the respondent in this Court is of no consequence. In the aforesaid premises, we set aside the impugned orders of the High Court and allow these appeals and direct that the criminal proceedings would be continued. The money which had been deposited by the accused in this Court, may be refunded to the accused through his counsel.
PUNJAB AND HARYANA HIGH COURT 2002.
. In case, after filing of the complaint the petitioner offered to make the payment to the respondents, that is of no value.
But after the filing of the complaint, the offer, if any, is useless. It is at the most a mitigating circumstance at the time of conviction.
P GOYAL
(Querist) 01 June 2013
DEAR EXPERTS,
THEN WHAT IS THE MEANING/USE OF COMPOUNDING. WHEN THE COMPLAINEENT HAD EXPRESSELY AGREEED IN THE WRITTEN AGREEEMENT THAT "SHE HAS RECEIVED THE PAYMENT AND HAVE NO DUES AGAINST THE ACCUSED AND WILL WITHDRAW THE CASE AGAINST HIM". Still the accused have no remedy left?
Nadeem Qureshi
(Expert) 01 June 2013
Dear Mr. Goyal
there is a procedure in court proceeding
either complainant withdraw the case otherwise accused should be appear before the court and got bail submit his surety and apply for compounding the matter through mediation or before the court, if the complainant is ready to settle the matter only then the case will be compounding otherwise the court frame the notice u/s 251 of Crpc and trial will be start, both the parties lead the evidence and argue the matter and court will decide the case.
Feel Free to Call
ajay sethi
(Expert) 01 June 2013
we have advised you to make application for compounding on basis of the supreme court judgement . also enclose copy of written agreement executed by complainant . let the court pass orders on your application .
R.K Nanda
(Expert) 01 June 2013
no more to add.
DEFENSE ADVOCATE.-firmaction@g
(Expert) 02 June 2013
The SC citation DAMODAR PRABHU for compounding in cheque case has not changed the law only provided or easy procedure.
COMPOUNDING CAN BE DONE ONLY IF COMPLAINANT IS WILLING, IT CAN NOT BE FORCED BY THE ACCUSED.
The accused did not bother to take proper local legal help before making payment and hence trapped.
Making payment and withdrawal of the case should have been at the same time which an advocate at the spot could have insured.
The only option now for accused is to contest the case with expert advocate and at the same time go on making efforts to wean the complainant to come to terms.
Rajendra K Goyal
(Expert) 02 June 2013
Discuss the possibility of lodging FIR u/s 420 with your local lawyer. The money was paid with the intention that the case would be withdrawn,fact is shown in the agreement. It seems that the money was extracted from you with fraudulent intention.
R.K Nanda
(Expert) 02 June 2013
file agreement and copy of DD in court and then complainant will have to w/d her case.
