Interim Order 1

Order Details: Order
Pdf Text: 1 C. C. No.2624/SS/2018
ORDER BELOW APPLICATION DATED 23/12/2019 MADE BY ACCUSED
1. This is an application made by accused stating that on
30/07/2018 an amount of Rs.8,50,000/-, on 08/05/2019 an amount of
Rs.3,50,000/- and on 27/09/2019 an amount of Rs.4,17,326/- is being
paid by accused proceeding may be disposed of. Alongwith this
application accused have annexed certificate dated 06/12/2019 issued
by Central Bank of India which confirmed the averments made in the
application.
2. Complainant was absent today. ld. Advocate for
complainant was present before the court. He orally acknowledged
receipt of amount as stated in the application. However, it was his
contention that accused has not paid interest.
3. Both parties were not agreed on interest amount and
requested Court to determine it.
4. Perusal of record shows that disputed cheques are totally of
Rs.14,51,297/-. I usefully take the reference of the case of M/s Meters
and Instruments Private Limited Vs Kanchan Mehta (2018) 1SCC 560,
wherein it is observed that offence under Section 138 of Negotiable
Instrument Act is primarily a civil wrong. The burden of proof is on
accused in view of presumption under Section 139 but the standard of
such proof is preponderance of probabilities. The same has to be
normally tried summarily as per the provisions of Summary trial under
the Cr. P. C. but with such variations as may be appropriate to
proceedings under Chapter XVII of the Act. Thus, read the principle of
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Section 258 of Cr. P. C. will apply and the Court can close the
proceeding and discharge the accused on the satisfaction that cheque
amount with assessed cost and interest is paid and if there is no reason
to proceed with the punitive aspect. The object of provision being
primarily compensatory, punitive element being mainly with the object
of enforcing the compensatory element, compounding at the initial
stage has to be encourage but is not debarred at the later stage subject
to appropriate compensation as may be found acceptable to the parties
or the court. Though compounding requires consent of both parties,
even in the absence of such consent, the court, in the interest of justice,
on being satisfied that the complainant has been duly compensated, can
in its discretion closed the proceeding and discharge the accused.
Procedure for the trial of cases under Chapter XVII of the Act has
normally to be summary. The discretion of the Magistrate under second
proviso to Section 143, to hold that it was undesirable to try the case
summarily as sentence of more than one year may have to be passed, is
to be exercised after considering the further fact that apart from the
sentence of imprisonment, the court has jurisdiction under Section 357
(3) Cr. P. C. to award suitable compensation with default sentence under
Section 64 of IPC and with further powers of recovery under Section
431 of Cr. P. C. with this approach, prisoned sentence of more than one
year may not be required in all cases.
5. Now turn to case in hand, from the present application, it is
appearing that by the end of 27/09/2019 accused have made payment
of Rs.16,17,326/-. In the light of the observations made by Hon'ble
Apex Court in the case of M/s Meters (cited supra), accused are
required to pay the interest on the cheques amount. Now the question
before me is at what rate interest on the cheque amount can be
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awarded. In this regard, I usefully take the reference of the case of
R.Vijayan Vs Baby And Anr. 2012(1)SCC 260, and direct the accused to
pay the interest @ 9 % per annum on the cheques amount from the
date of cheque till 30/09/2019. It comes around Rs.2,06,809/-. If the
disputed cheques amount and aforesaid interest together it comes
around Rs.16,58,107/- out which an amount of Rs.16,17,326/- is
already paid by accused to the complainant. So, if, accused pays
remaining amount of Rs.40,780/- to the complainant then by resorting
the observations made by Hon'ble Apex court in the case of M/s Meters
(cited supra), further order will be passed.
(Ketaki M. Chavan)
Metropolitan Magistrate,
Date : 23/12/2018 63rd Court, Andheri, Mumbai.
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