Case :- APPLICATION U/S 482 No. - 24912 of 2018 Applicant :- Sandeep @ Sandeep Mishra Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Krishan Mohan Mishra Counsel for Opposite Party :- G.A.
Hon'ble Dinesh Kumar Singh-I,J.
Heard Sri Krishan Mohan Mishra, learned counsel for the applicant and Sri Prashant Kumar learned A.G.A. for the State and perused the record.
The present application u/s 482 Cr.P.C. has been filed with a prayer to quash the entire proceeding of Complaint Case No. 649 of 2008 (New No. 1141 of 2011) (Manoj Kumar Vs. Sandeep Mishra), under Section 138 N.I. Act, P.S. Kotwali, District Etawah.
Learned counsel for the applicant has contended that the cheque which had bounced was of amount of Rs. 17,00,000/-, out of which Rs,. 15,00,000/- had already been paid and the remaining amount will be paid shortly. The offence u/s 138 N.I. Act is compoundable, hence the matter may be referred to the court below for deciding the case in the light of Damodar S. Prabhu Vs. Sayed Babalal H., 2010 (5) SCC 663 On the other hand, learned A.G.A. pointed out that the impugned order has been passed in accordance with law which does not require any interference and that the application u/s 482 Cr.P.C. deserves to be rejected.
From the perusal of material on record and looking into the facts of this case, at this stage, it cannot be said that no offence is made out against the applicant. All the submissions made at the Bar relates to the disputed questions of fact, which cannot be adjudicated upon by this Court in proceedings u/s 482 Cr.P.C. At this stage only prima facie case is to be seen in the light of law laid down by Hon'ble Supreme Court in cases of R.
P. Kapur vs. The State Of Punjab, AIR 1960 SC 866, State of Haryana and others Vs. Ch. Bhajan Lal and others, AIR 1992 SC 604, State of Bihar and Anr. Vs. P.P. Sharma, AIR 1991 SC 1260 lastly Zandu Pharmaceutical Works Ltd. and Ors. Vs. Md. Sharaful Haque and Ors., AIR 2005 SC 9. The disputed defense of the accused cannot be considered at this stage.
the learned counsel for the applicant. The application u/s 482 Cr.P.C. is, accordingly, rejected.
However, the applicant may approach court below through counsel for seeking compounding of the case, if he so desires within 30 days from today by moving an application for the same. In case, such an application is moved, the court below shall consider the same and shall decide the case within a period of four months in accordance with the guidelines laid down by Hon'ble the Supreme Court in Damodar S. Prabhu (supra). The paragraph no. 21 of the said judgment is as follows:-
21. With regard to the progression of litigation in cheque bouncing cases, the learned Attorney General has urged this Court to frame guidelines for a graded scheme of imposing costs on parties who unduly delay compounding of the offence. It was submitted that the requirement of deposit of the costs will act as a deterrent for delayed composition, since at present, free and easy compounding of offences at any stage, however belated, gives an incentive to the drawer of the cheque to delay settling the cases for years. An application for compounding made after several years not only results in the system being burdened but the complainant is also deprived of effective justice. In view of this submission, we direct that the following guidelines be followed:-
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.
In case, no such application is moved within the said period or the compounding of the case fails within the aforesaid period and it is found incumbent to proceed with the trial, the learned law against the accused and shall take all necessary steps and measures to procure his attendance as the law permits.
In the aforesaid period of five months or till the decision given in the light of the application, whichever is earlier, no coercive measures shall be adopted against the accused.
It is made clear that no application for extension of time shall be entertained if this order is not availed by the accused in the stipulated period of time.
It is further clarified that this order has been passed only with regard to the accused on behalf of whom this application u/s 482 Cr.P.C. has been moved in this Court.
Order Date :- 23.8.2018 A.P. Pandey