Court No. - 85
Case :- APPLICATION U/S 482 No. - 9222 of 2021 Applicant :- Surya Prakash Singhal Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Arun Kumar Pandey,Vikas Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Gautam Chowdhary,J.
Heard learned counsel for the applicant and learned A.G.A. for the State as also perused the record.
The present 482 Cr.P.C. application has been filed to quash the further proceedings of complaint case NO. 3865 of 2017 (Gagan Singhal Vs. M/s K.K. Milk Fresh India Ltd. and 5 others), under section 138 N.I. Act, Police Station Hari Parwat, DistrictAgra pending in the Court of Additional Chief Judicial Magistrate, Court No. 2, Agra.
Learned counsel for the applicant submits that on the basis of the false, fabricated & concocted allegation opposite party No. 2 has filed a complaint dated 24.11.2017, on which the learned Chief Judicial Magistrate, Agra has summoned the applicant which is erroneous & liable to be quashed by this Hon'ble Court. Further submitted that in the present case the statements of the applicant under sections 200 and 202 Cr.P.C. has not been recorded.
The prayer for quashing the same is refused as I do not see any abuse of the Court's process either.
In the last, the counsel has urged before the Court that the facts and circumstances of the case and the nature of offence involved are such in which the litigating parties should be given a chance to settle this matter amicably and for this purpose some protective direction may be given by this Court so that adequate steps may be taken in furtherance of the same object. The counsel has also placed reliance on the Apex Court given in the case of Damodar S. Prabhu Vs. Sayed Babalal H., 2010(5) SCC 663 in this regard. Submission is that the Apex Court decision has taken cognizance ofthe heavy pendency of the cases in the courts which may result ultimately in the chocking of criminal justice system. It has been urged that with the laudable object of providing the rival parties, who have hitherto locked their horns in litigation, an opportunity to arrive at a mutually agreeable settlement and put an end to the escalating litigations, the compounding of the offence has not only been encouraged but in order to given incentive to do so at the earliest stage, certain directions have also been issued by the Hon'ble Supreme Court.
I have considered the last submission made by the counsel in the light of the aforesaid case law. It may be relevant to quote the observation made by the Hon'ble Apex Court in the case of Damodar S. Prabhu (supra) which read as follows :-
"17. In a recently published commentary, the following observations have been made with regard to the offence punishable under Section 138 of the Act [Cited from: Arun Mohan, Some thoughts towards law reforms on the topic of Section 138, Negotiable Instruments Act-Tackling an avalanche of cases (New Delhi: Universal Law Publishing Co. Pvt. Ltd., 2009) at p. 5] :
"... Unlike that for other forms of crime, the punishment here (in so far as the complainant is concerned) is not a means of seeking retribution, but is more a means to ensure payment of money. The complainant's interest lies primarily in recovering the money rather than seeing the drawer of the cheque in jail. The threat of jail is only a mode to ensure recovery. As against the accused who is willing to undergo a jail term, there is little available as remedy for the holder of the cheque.
If we were to examine the number of complaints filed which were `compromised' or `settled' before the final judgment on one side and the cases which proceeded to judgment and conviction on the other, we will find that the bulk was settled and only a miniscule number continued."
18. It is quite obvious that with respect to the offence of dishonour of cheques, it is the compensatory aspect of the remedy which should be given priority over the punitive aspect. There is also some support for the apprehensions raised by the learned Attorney General that a majority of cheque bounce cases are indeed being compromised or settled by way of compounding, albeit during the later stages of litigation thereby contributing to undue delay in justice delivery. The problem herein is with the tendency of litigants to belatedly choose compounding as a means to resolve their dispute. ....................
19. As mentioned earlier, the learned Attorney General's submission is that in the absence of statutory guidance, parties are choosing compounding as a method of last resort instead of opting for it as soon as the Magistrates take cognizance of the complaints. One explanation for such behaviour could be that the accused persons are willing to take the chance of progressing through the various stages of litigation and then choose the route of settlement only when no other route remains. While such behaviour may be viewed as rational from the viewpoint of litigants, the hard facts are that the undue delay in opting for compounding contributes to the arrears pending before the courts at various levels. If the accused is willing to settle or compromise by way of compounding of the offence at a later stage of litigation, it is generally indicative of some merit in the complainant's case. In such cases it would be desirable if parties choose compounding during the earlier stages of litigation. If however, the accused has a valid defence such as a mistake, forgery or coercion among other grounds, then the matter can be litigated through the specified forums."
It is deducible from the Apex Court decision that the submission made by the counsel is not without substance.
As requested by the counsel, it is directed that the accused may appear before the court below within a period of one month from today through the representing counsel and move an application seeking compounding of offence through compromise. On such application being moved the concerned court may take adequate steps in accordance with law in this regard and shall provide further opportunity to the accused which shall not exceed a maximum period of four months from today to make an endeavour in this direction. Thereafter, the court shall pass necessary orders specifically keeping in view the law laid down by the Apex Court in the case of Damodar S. Prabhu (supra) within a period of five months from today.
If the decision of the Court given in the light of the application does not conclude the proceedings against the accused and he is further required to appear and face the trial, the court shall be at liberty to proceed in accordance with law against the accused and 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-applicant.
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.
Taking into consideration that Covid-19 pandemic is continuing and due to which certified copy of this order would not be possible to be obtained by the applicant, therefore, if a copy of this order downloaded from the official website of Allahabad High Court and self-attested by the counsel for the applicant is placed before the Court concerned, the same would be entertained.
With the aforesaid direction, application under section 482 Cr.P.C. stands disposed of.
Order Date :- 29.7.2021 RPD