Sec 138 ni act whether punitive
Ashutosh Choubey
(Querist) 04 January 2014
This query is : Resolved
Dear Sir
My query is that in a cheque bounce case whether the complainant can pursue the case further even if the accused has made the payment due against the bounced cheque after the long period of pendency of the case and litigation. Is the compromise is compulsory u/s 138 NI Act on payment of dues or the complainant can pray the court for conviction of the accused if he is found guilty u/s 138. According to the scheme of the section bouncing of cheque itself is a crime and the accused drawer makes himself liable for punishment as soon as his offence is proved.
Nadeem Qureshi
(Expert) 05 January 2014
Dear Ashutosh
bouncing the cheque only is not an offence but after received the demand notice not make the payment within 15 days is an offence, the accused should be paid the amount before the court or in mediation.
ajay sethi
(Expert) 05 January 2014
it is always better to compromise . you are concerned with recovery of your money . if accused has made full payment and also paid legal expenses better with draw the case .
if accused has made full payment court will take a lenient view . wont send accused to jail .
Advocate Bhartesh goyal 
(Expert) 05 January 2014
Though the full payment of cheque has been made by accused during trial but it does not mitigate offence of sec 138 of N.I.Act, even than i will suggest you to follow the advice of Mr Ajay Sethi as it is most genuine and proper.
Hemant Agarwal
(Expert) 08 January 2014
1. Offence u/s 138 of the N.I.Act, is "compoundable" at the discretion of the Complainant WITH the permission of the Court. This means that if the accused pays the cheque amount in court, BUT before final orders, then the magistrate is lawfully bound to compound the offence, with / without compensation/penalty to the complaintant. However the magistrate may use its discretion to compound or not to compound, depending on malicious falsisity of the accused.
2. IF the offence is compounded, then no further prosecution will lie, from date of compounding. The criteria is :
Pay amount = Go free
Dont pay amount = conviction (imprisonment)
3. However, if complaint of cheating were to be filed separately during filing of N.I.Act complaint, then the criminal case of cheating would continue, to its logical end, without any reference to the case under N.I.Act.
4. IF the accused is convicted for punishment, THEN money plus conviction will not be possible, since conviction arises only on refusal to pay cheque amount. OBVIOUSLY why would the accused pay the cheque amount, IF he prefers to go for imprisonment, more so since after imprisonment, there is no legal element of recovery of cheque amount under the N.I.Act.
Keep Smiling .... Hemant Agarwal
http://hemantagarwal21.blogspot.in/?view=sidebar
R.V.RAO
(Expert) 31 January 2014
yes NI Act sec.138 offence is compoundable.
much depends on the intent of the case filed and remedy sought.
if the intent is only to recover the money,it will end there.
or else, if the magistrate will find any cheating or wrongful intentions,the case will be disposed accordingly.
