N i act:
Mohan Shandilya
(Querist) 14 April 2019
This query is : Resolved
Can payment made in Execution proceedings be a ground for compounding without Compensation & Costs of 138 offence which stood committed because no payment was made within the stipulated period of 15 days ? Pls answer.
Dr J C Vashista
(Expert) 15 April 2019
Yes, it can compounded if the amount has been paid to the satisfaction of drawee of cheque, even after stipulated period of 15 days.
Incomplete information.
Dr J C Vashista
(Expert) 15 April 2019
It may be made clear execution proceeding start only after conviction of accused/drawer of cheque.
Mohan Shandilya
(Querist) 15 April 2019
Thank you, Dr JCV. Sorry I didn't clarify that the Execution referred to in the Query is Execution of a Decree passed in a different case (civil) and NOT in 138 proceedings which didn't even start beyond Summons because the MM compounded on the very first appearance without the mandatory procedure of recording of statement u/s 251 CrPC. So, Execution was launched before commission of the offence u/s 138 N I Act, which offence is an independent substantive matter ... cannot be linked to a pending Execution in a different court, although the parties are the same. but the 138 offence is committed and has to be treated as a separate trial. Correct?
Mohan Shandilya
(Querist) 15 April 2019
and further, amount is NOT paid to the satisfaction of the drawee because as per the decree Interest was directed to be paid till realization. There is a short payment of interest that accrued over a period of more than 6 months ... remains unpaid.
Mohan Shandilya
(Querist) 15 April 2019
Here is chronology:
1. Bank obtains ex-parte decree and adjusts the suit amount by foreclosing an FD kept with it for specific purpose (Sec 171 not applicable as Right of General Lien)
2. Ex-parte decree set aside on an IA u/o 9 r 13
3. Court allowed Sec 144 restitution
4. Bank challenges Order of restitution in 1st appeal
5. 1st appeal dismissed
6. 2nd Appeal too dismissed
7. Review of 2nd Appeal dismissal order also Dismissed
8. SLP also dismissed
9. Decree Holder files Execution
10. J D fails to pay the decree amount
11. DH files Conetmpt – pending.
12. JD pays in Execution a DD which when presented returns dishonoured with Memo of Return: Account closed.
13. DH files complaint u/s 138 NI Act
14. JD pays decreed amount in Execution Court without any reference to Notice in 138 proceedings
15. Accused are summoned, and they appear before 138 Court seeking discharge on the ground that the amount stands paid in Execution proceedings.
16. Query: Can the 138 Court compound the proceedings WITHOUT COMPENSATION & COSTS, without recording statement u/s 251 CrPC, especially when DH maintains that JD has NOT paid the full amount of accrued interest “till realization” which has been Ordered by the Court while passing decree ?
Mohan Shandilya
(Querist) 15 April 2019
In your reply above you have stated "... to the satisfaction of the drawee" ... I take it you meant "payee".
Dr J C Vashista
(Expert) 16 April 2019
You are right it is "payee".
Supreme Court judgment titled Meters and Instruments Pvt. Ltd. (2017) may be referred qua adequate compensation, which is extension of (2012) Damodar S Parbhu of apex court.
Mohan Shandilya
(Querist) 16 April 2019
Dr JCV, 'Meters' judgment is about Guidelines for compounding 138 offence, and NOT about what is adequate compensation or how to calculate compensation. My Query is: Can payment made in another proceedings, NOT in 138 proceedings, be considered for compounding 138 offence ?
Hemant Agarwal
(Expert) 16 April 2019
MY VIEWS:
1. Bank DD is not signed by Accused, hence Accused is not liable for bounce of DD. Hence 138 matter becomes infructuous.
2. Execution Amount & Interest (part /full), Accounting & Logistics of civil amounts etc...., is not within jurisdiction of MM court, to adjudicate in any manner.
Keep Smiling .... Hemant Agarwal
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