Important provisions of Muslim Women (Protection of Rights on Marriage) Act, 2019

 [Act 20 of 2019 ]   

[31st July, 2019]

An Act to protect the rights of married Muslim women and to prohibit divorce by pronouncing talaq by their husbands and to provide for matters connected therewith or incidental thereto.

(2) It shall extend to the whole of India.

(3) It shall be deemed to have come into force on the 19th day of September, 2018.

2. Definitions.—In this Act, unless the context otherwise requires,—

(b) “Magistrate” means a Judicial Magistrate of the first class exercising jurisdiction under the Code of Criminal Procedure, 1973 (2 of 1974), in the area where the married Muslim woman resides; and

(c) “talaq” means talaq-e-biddat or any other similar form of talaq having the effect of instantaneous and irrevocable divorce pronounced by a Muslim husband.

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Whether the court can confirm conviction of accused U/S 138 of NI Act if there is agreement to compromise between him and complainant?

It is also to be noted that as per the terms of the agreement, the Respondent No.2 was bound to file a compromise petition before the High Court, however he failed to do so. The lack of filing of such a compromise petition, as agreed upon by the Respondent No.2, has now led to the High Court dismissing the Revision and confirming the Conviction of the Appellants. 

{Para 7}

8. In our view, the terms and conditions of the settlement entered into by the parties binds them to settle the dispute amicably, or through an arbitration as has been stated in clause 8 of the Memorandum of Understanding.

9. In such a circumstance, the Appellants cannot be convicted on the basis of the orders passed by the courts below, as the settlement is nothing but a compounding of the offence.

11. This is a very clear case of the parties entering into an agreement and compounding the offence to save themselves from the process of litigation. When such a step has been taken by the parties, and the law very clearly allows them to do the same, the High Court then cannot override such compounding and impose its will.

IN THE SUPREME COURT OF INDIA 

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2023 

 B.V. SESHAIAH  Vs THE STATE OF TELANGANA & ANR.

Coram:  KRISHNA MURARI; J., V. RAMASUBRAMANIAN; J.

Author: KRISHNA MURARI, J.

Dated:  1st February, 2023

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Supreme court: Power Of Compounding Must Be Expressly Conferred By Statute Which Creates Offence

 However, Section 320 provides for the compounding of offences only under the IPC. Hence, in respect of offences which lie outside the IPC, compounding may be permitted only if the statute which creates the offence contains an express provision for compounding before such an offence can be made compoundable. The power of compounding must, in other words, be expressly conferred by the statute which creates the offence. {Para 60}

Reportable

Supreme Court of India

Prakash Gupta vs Securities And Exchange Board Of ... on 23 July, 2021

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Whether the court can reduce punishment imposed on accused in the non-compoundable offence if there is a settlement between the parties?

In our considered opinion, it would not be appropriate to order

compounding of an offence not compoundable under the Code

ignoring and keeping aside statutory provisions. In our judgment,

however, limited submission of the learned counsel for the

appellant deserves consideration that while imposing substantive

sentence, the factum of compromise between the parties is indeed a

relevant circumstance which the Court may keep in mind.

 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.24/2021

Murali  Vs State rep. by the Inspector of Police

 DATED : 05-01-2021

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Important provisions of Electricity Act, 2003.

135. Theft of electricity

136. Theft of electric lines and materials

137. Punishment for receiving stolen property.
138. Interference with meters or works of licensee.
139. Negligently breaking or damaging works.
140. Penalty for intentionally injuring works
150. Abetment.—(1) Whoever abets an offence punishable under this Act, shall, notwithstanding anything contained in the Indian Penal Code, be punished with the punishment provided for the offence.

151. Cognizance of offences.—No court shall take cognizance of an offence punishable under this Act except upon a complaint in writing made by the Appropriate Government or Appropriate Commission or any of their officer authorised by them or a Chief Electrical Inspector or an Electrical Inspector or licensee or the generating company, as the case may be, for this purpose:

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Whether court can reject application for compounding of offence in offence of cheating?

Even in this appeal, it is argued by learned Counsel for the Appellant that in view of the provision Under Section 320 of the Code of Criminal Procedure, the offence Under Section 420 Indian Penal Code is compoundable with the permission of the court. It is further argued by learned Counsel, that while dismissing the application for compounding, High Court has dismissed the Criminal Revision also without considering the various grounds raised in the Revision Petition. It is further submitted that the alleged incident was of the year 1991-92, but the complaint was lodged belatedly on 05th of November 2004. Further it is submitted that Appellant is a senior citizen and the High Court has committed error in dismissing the Criminal Revision without considering the same on merits.

On the other hand, learned Counsel appearing for the State has submitted that, merely because an offence is compoundable Under Section 320 Code of Criminal Procedure, if the offence for which the Appellant is convicted has its adverse social impact on the society, it need not be compounded. It is further submitted that as much as Criminal Revision is also dismissed by the High Court, no case is made out in this appeal to interfere with the conviction recorded and sentence imposed on the Appellant.

10. Having heard the learned Counsel on both sides we have perused the impugned judgment and also other material placed on record. It was the case of the prosecution that in the beneficial scheme introduced for poor persons under residential scheme an amount of Rs. 9800/- was sanctioned during the year 1991-92 to the complainant. It is the specific case of the complainant that though she was to be paid entire Rs. 9800/-, but Appellant misled her and procured her signature and made payment of only Rs. 4000/- and he has utilised rest of the amount for himself for his personal benefit and gain. Merely because an offence is compoundable Under Section 320 Code of Criminal Procedure still discretion can be exercised by the court having regard to nature of offence, as such it is rightly held in the impugned judgment that as the offence for which Appellant was convicted and sentenced, it will have its own effect on the society at large. In view of the reasons recorded in the impugned order rejecting the application for compounding, it cannot be said that the High Court has committed any error in not accepting the application filed for compounding the offence.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 465 of 2019

Decided On: 11.03.2019

 Bhagyan Das Vs.  The State of Uttarakhand and Ors.

Hon'ble Judges/Coram:

R. Banumathi and R. Subhash Reddy, JJ.

Citation: AIR 2019 SC 2032: 2019 (2) Crimes 27 : 2019 (2) KLJ 190 : 2019 (2) RCR (Criminal) 551 : (2019) 4 SCC 354

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Whether court has discretion to refuse compounding of compoundable offence?

 Having heard the learned counsel on both sides we have
perused the impugned judgment and also other material placed
on record. It was the case of the prosecution that in the
beneficial scheme introduced for poor persons under
residential scheme an amount of Rs.9800/- was sanctioned
during the year 1991-92 to the complainant. It is the
specific case of the complainant that though she was to be
paid entire Rs.9800/-, but appellant misled her and procured
her signature and made payment of only Rs.4000/- and he has
utilised rest of the amount for himself for his personal
benefit and gain. Merely because an offence is compoundable
under Section 320 Cr.PC, still discretion can be exercised by
the court having regard to nature of offence, as such it is
rightly held in the impugned judgment that as the offence for
which appellant was convicted and sentenced, it will have its
own effect on the society at large. In view of the reasons

recorded in the impugned order rejecting the application for
compounding, it cannot be said that the High Court has
committed any error in not accepting the application filed
for compounding the offence.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL No(s). 465 OF 2019
(Arising out of SLP(Crl.) No(s).125 of 2017)

BHAGYAN DAS  Vs THE STATE OF UTTARAKHAND 

R. SUBHASH REDDY, J.:
Dated:MARCH 11, 2019.

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Whether court should adjourn case for reasonable time to allow parties to fulfill terms of agreement entered in mediation?

Then, the question is what the Criminal Court will have to do in such cases namely whether the Court has to wait for the period mentioned in the agreement so as to enable the parties to fulfill the terms of the agreement and if it is not fulfilled proceed with the case. It is true that it is a difficult position to be answered in cases under Sections 138 of Negotiable Instruments Act. The cases under this Act has to be disposed of within six months from the date of filing of the complaint as per Section 143(3) of the Act. Further, this aspect was considered by the Hon'ble Supreme Court in the decision reported in Indian Bank Association & Others v. Union of India & Ors. (MANU/SC/0387/2014 : 2014 (2) KLT 788 (SC) : ILR 2014 (2) Ker. 469), and gave guidelines as to how the criminal courts have to proceed with the cases filed under Section 138 of the above Act. So, it is clear from the above decision that the effort must be made by the Magistrate to dispose of the cases expeditiously. Further, in the decision reported in Damodar S. Prabhu v. Sayed Babalal H (MANU/SC/0319/2010 : 2010 (2) KLT 587 (SC) : 2010 (2) KHC 428), the Hon'ble Supreme Court has held that in cases where the accused in 138 cases are unnecessarily prolonging the case, though, it is a compoundable offence and if the compounding was not done at the earliest point of time, then the Court can record compounding at the subsequent stages before the Magistrate court by imposing 10% of the cheque amount as costs and if it is allowed in the Sessions Court or High Court 15% of the cheque amount to be imposed as costs and if it is before the Supreme Court 20% has to be imposed as costs to be paid and to be deposited with the Legal Services Authority. Further, in the same decision, some discretion was given to the courts to reduce the amount to be imposed as cost or even dispense with payment of me costs in appropriate cases. This was intended to prevent the unnecessary delay in disposing me case filed under Section 138 of the Negotiable Instruments Act by the accused in the case. So, under the said circumstances, if the unreasonable longer periods were provided in the agreement for payment of the amount, then the court cannot be blamed for insisting for adducing evidence by the complainant in view of the dictum laid down in me above decisions. But, at the same time, in order to promote mediation as a process for an Alternative Disputes Resolution in monitory transactions as in the cases under Section 138 of the Act as it was really a civil dispute which was converted into a criminal prosecution with a view to make the drawer of the cheque to honour the cheque than to send them to prison as mentioned in the decision reported in Damodar S. Prabhu's case (supra), Court can allow reasonable time to parties to fulfill the terms of the agreement so as to avoid prolonged litigation for realisation of the amount So, under the said circumstances, in order to promote the settlement arrived at in the mediation if a reasonable time is provided in the mediation agreement namely, up to 6 months and if the parties are willing to abide by the condition, then it is always better that court can wait for that much time to allow the parties to honour the settlement that has been arrived in the mediation and the purpose of the mediation is to restore the relationship between the parties and that can be achieved by that and that will give a boost for a process of mediation to be used by the parties to resolve their disputes amicably. If the accused did not pay the amount and it was referred for mediation at the request of the accused only as a method of delaying the matter, then the court must take it as a serious one and later in the course of trial, if he wants to compound a case on the basis of the settlement agreement and even if, the complainant is prepared for the same, that can be allowed only strictly in accordance with the guidelines provided by the Hon'ble Supreme Court in Damodar S. Prabhu's case (supra) as it will, give a message to the defaulting accused and making him to understand that if he has agreed to pay the amount within the particular time as a party to the settlement in the mediation, he should honour the same in letters and spirit of the agreement, otherwise he will have to pay the penalty for the same. So, under the circumstances, this court feels that since six months period is provided will be over by 17.08.2014, the learned Magistrate is directed to keep the case till that date without insisting for evidence so as to allow the parties to honour the settlement which has been arrived in the mediation process and if the amount is not paid and the application for compounding is not filed within that time, then the learned Magistrate is directed to proceed with the case, considering the principles laid down in this decision regarding the mediation agreement which has not been honoured by the accused and dispose of the case in accordance with law. If a compounding application is filed on the basis of the same agreement later, then that can be taken only as a delaying process by the accused and it can be accepted only in terms of the guidelines provided in Damodar S. Prabhu's case (supra).

IN THE HIGH COURT OF KERALA

Crl. M.C. No. 1864 of 2014

Decided On: 10.07.2014

 Sreelal  Vs.  Murali Menon

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When court should not allow compounding of criminal case if it involves forgery?

 Having heard all sides and having gone through the record, this court finds that the gravamen of the charges framed against the petitioner in the criminal case primarily is that he was an employee of Kundan Edible Oil Mills, a sister concern of Kundan Rice Mill in which the second respondent was the Managing Director, the third respondent being its Chief Financial Officer at the relevant point of time. It is stated that the petitioner in his capacity as an employee under the said respondents had dishonestly removed a cheque leaf of the said entity against its bank account with HDFC bank, and the said cheque leaf having been forged and fabricated so as to purport to be a cheque issued in the sum of Rs. 6 Lakh was presented in the bank for obtaining payment there-against. The cheque, upon presentation and scrutiny, was found to be forged and fabricated and this fact having been brought to light, complaint was lodged leading to the registration of the said FIR. During the investigation, the petitioner statedly was unable to account for possession of the cheque which was forged, grave suspicion arising being that he knowing full well that it was a forged instrument had attempted to use it to commit the offence of cheating by presenting it dishonestly to receive value there-against from the bank.

5. This court agrees with the submission of the learned Additional Public Prosecutor that the facts of the case, as noted above, render it one beyond the dispute that is “private in nature”. It involves serious economic offences which concern not only the entity against the account of which the forged cheque was attempted to be encashed but also the bank where the account was maintained. Having regard to the spirit of the law laid down by a bench of three Hon'ble Judges of the Supreme Court in Parbatbhai Aahir(supra), this can hardly be said to be a case meriting exercise of the inherent power of this court to bring an end to the prosecution.

In the High Court of Delhi at New Delhi

(Before R.K Gauba, J.)

Pawan Gupta 

v.

State of NCT Delhi & Ors. 

Crl.M.C 4927/2015

Decided on August 23, 2018

Citation:2018 SCC OnLine Del 11121

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Landmark judgment of delhi high court in respect of mediation in cheque dishonour case

 In view of the above, the reference made by the ld. Metropolitan Magistrate by the order dated 13th January, 2016 (extracted in para 1 above) is answered thus :

Question I : What is the legality of referral of a criminal compoundable case (such as on u/s 138 of theNI Act) to mediation?

It is legal to refer a criminal compoundable case as one under Section 138 of the NI Act to mediation.

Question II : Can the Mediation and Conciliation Rules, 2004 formulated in exercise of powers under the CPC, be imported and applied in criminal cases? If not, how to fill the legal vacuum? Is there a need for separate rules framed in this regard (possibly u/s 477 of the CrPC)?

The Delhi Mediation and Conciliation Rules, 2004 issued in exercise of the rule making power under Part-10 and Clause (d) of sub-section (ii) of Section 89 as well as all other powers enabling the High Court of Delhi to make such rules, applies to mediation arising out of civil as well as criminal cases.

Question III : In cases where the dispute has already been referred to mediation - What is the procedure to be followed thereafter? Is the matter to be disposed of taking the very mediated settlement agreement to be evidence of compounding of the case and dispose of the case, or the same is to be kept pending, awaiting compliance thereof (for example, when the payments are spread over a long period of time, as is usually the case in such settlement agreements)?

In the context of reference of the parties, in a case arising under Section 138 of the NI Act, to mediation is concerned, the following procedure is required to be followed :

III (i) When the respondent first enters appearance in a complaint under Section 138 of the NI Act, before proceeding further with the case, the Magistrate may proceed to record admission and denial of documents in accordance with Section 294 of the Cr.P.C., and if satisfied, at any stage before the complaint is taken up for hearing, there exist elements of settlement, the magistrate shall inquire from the parties if they are open to exploring possibility of an amicable resolution of the disputes.

III (ii) If the parties are so inclined, they should be informed by the court of the various mechanisms available to them by which they can arrive at such settlement including out of court settlement; referral to Lok Adalat under the Legal Services Authorities Act, 1987; referral to the court annexed mediation centre; as well as conciliation under the Arbitration and Conciliation Act, 1996.

III (iii) Once the parties have chosen the appropriate mechanism which they would be willing to use to resolve their disputes, the court should refer the parties to such forum while stipulating the prescribed time period, within which the matter should be negotiated (ideally a period of six weeks) and the next date of hearing when the case should be again placed before the concerned court to enable it to monitor the progress and outcome of such negotiations.

III (iv) In the event that the parties seek reference to mediation, the court should list the matter before the concerned mediation centre/mediator on a fixed date directing the presence of the parties/authorized representatives before the mediator on the said date.

III (v) If referred to mediation, the courts, as well as the mediators, should encourage parties to resolve their overall disputes, not confined to the case in which the reference is made or the subject matter of the criminal complaint which relates only to dishonouring of a particular cheque.

III (vi) The parties should endeavour to interact/discuss their individual resolutions/proposals with each other as well and facilitate as many interactions necessary for efficient resolution within the period granted by the court. The parties shall be directed to appear before the mediator in a time bound manner keeping in view the time period fixed by the magistrate.

III (vii) In the event that all parties seek extension of time beyond the initial six week period, the magistrate may, after considering the progress of the mediation proceedings, in the interest of justice, grant extension of time to the parties for facilitating the settlement. For the purposes of such extension, the magistrate may call for an interim report from the mediator, however keeping in mind the confidentiality attached to the mediation process. Upon being satisfied that bona fide and sincere efforts for settlement were being made by the parties, the magistrate may fix a reasonable time period for the parties to appear before the mediator appointing a next date of hearing for a report on the progress in the mediation. Such time period would depend on the facts and circumstances and is best left to the discretion of the magistrate who would appoint the same keeping in view the best interest of both parties.

Contents of the settlement III (viii) If a settlement is reached during the mediation, the settlement agreement which is drawn-up must incorporate :

(a) a clear stipulation as to the amount which is agreed to be paid by the party;

(b) a clear and simple mechanism/method of payment and the manner and mode of payment;

(c) undertakings of all parties to abide and be bound by the terms of the settlement must be contained in the agreement to ensure that the parties comply with the terms agreed upon;

(d) a clear stipulation, if agreed upon, of the penalty which would enure to the party if a default of the agreed terms is committed in addition to the consequences of the breach of the terms of the settlement;

(e) an unequivocal declaration that both parties have executed the agreement after understanding the terms of the settlement agreement as well as of the consequences of its breach;

(f) a stipulation regarding the voluntariness of the settlement and declaration that the executors of the settlement agreement were executing and signing the same without any kind of force, pressure and undue influence.

III (ix) The mediator should forward a carefully executed settlement agreement duly signed by both parties along with his report to the court on the date fixed, when the parties or their authorized representatives would appear before the court.

Proceedings before the court III (x) The magistrate would adopt a procedure akin to that followed by the civil court under Order XXIII of the C.P.C. III (xi) The magistrate should record a statement on oath of the parties affirming the terms of the settlement; that it was entered into voluntarily, of the free will of the parties, after fully understanding the contents and implications thereof, affirming the contents of the agreement placed before the court; confirming their signatures thereon. A clear undertaking to abide by the terms of the settlement should also be recorded as a matter of abundant caution. III (xii) A statement to the above effect may be obtained on affidavit. However, the magistrate must record a statement of the parties proving the affidavit and the settlement agreement on court record.

III (xiii) The magistrate should independently apply his judicial mind and satisfy himself that the settlement agreement is genuine, equitable, lawful, not opposed to public policy, voluntary and that there is no legal impediment in accepting the same. III (xiv) Pursuant to recording of the statement of the parties, the magistrate should specifically accept the statement of the parties as well as their undertakings and hold them bound by the terms of the settlement terms entered into by and between them. This order should clearly stipulate that in the event of default by either party, the amount agreed to be paid in the settlement agreement will be recoverable in terms of Section 431 read with Section 421 of the Cr.P.C.

III (xv) Upon receiving a request from the complainant, that on account of the compromise vide the settlement agreement, it is withdrawing himself from prosecution, the matter has to be compounded. Such prayer of the complainant has to be accepted in keeping with the scheme of Section 147 of the NI Act. (Ref.:(2005) CriLJ 431, Rameshbhai Somabhai Patel v. Dineshbhai Achalanand Rathi) At this point, the trial court should discharge/acquit the accused person, depending on the stage of the case. This procedure should be followed even where the settlement terms require implementation of the terms and payment over a period of time.

III (xvi) In the event that after various rounds of mediation, the parties conclude that the matter cannot be amicably resolved or settled, information to this effect should be placed before the magistrate who should proceed in that complaint on merits, as per the procedure prescribed by law.

III (xvii) The magistrate should ensure strict compliance with the guidelines and principles laid down by the Supreme Court in the pronouncement reported at (2010) 5 SCC 663, Damodar S. Prabhu v. Sayed Babalal H and so far as the settlement at the later stage is concerned in (2014) 10 SCC 690Madhya Pradesh State Legal Services Authority v. Prateek Jain.

III (xvii) We may also refer to a criminal case wherein there is an underlying civil dispute. While the parties may not be either permitted in law to compound the criminal case or may not be willing to compound the criminal case, they may be willing to explore the possibility of a negotiated settlement of their civil disputes. There is no legal prohibition to the parties seeking mediation so far as the underlying civil dispute is concerned. In case a settlement is reached, the principles laid down by us would apply to settlement of such underlying civil disputes as well.

In case reference in a criminal case is restricted to only an underlying civil dispute and a settlement is reached in mediation, the referring court could require the mediator to place such settlement in the civil litigation between the parties which would proceed in the matter in accordance with prescribed procedure.

Question IV : If the settlement in Mediation is not complied with - is the court required to proceed with the case for a trial on merits, or hold such a settlement agreement to be executable as a decree?

In case the mediation settlement accepted by the court as above is not complied with, the following procedure is required to be followed :

IV (i) In the event of default or non-compliance or breach of the settlement agreement by the accused person, the magistrate would pass an order under Section 431 read with Section 421 of the Cr.P.C. to recover the amount agreed to be paid by the accused in the same manner as a fine would be recovered.

IV (ii) Additionally, for breach of the undertaking given to the magistrate/court, the court would take appropriate action permissible in law to enforce compliance with the undertaking as well as the orders of the court based thereon, including proceeding under Section 2(b) of the Contempt of Courts Act, 1971 for violation thereof.

Question V : If the Mediated Settlement Agreement, by itself, is taken to be tantamount to a decree, then, how the same is to be executed? Is the complainant to be relegated to file an application for execution in a civil court? And if yes, what should be the appropriate orders with respect to the criminal complaint case at hand. What would be the effect of such a mediated settlement vis-à- vis the complaint case?

V (i) The settlement reached in mediation arising out of a criminal case does not tantamount to a decree by a civil court and cannot be executed in a civil court.

However, a settlement in mediation arising out of referral in a civil case by a civil court, can result in a decree upon compliance with the procedure under Order XXIII of the C.P.C. This can never be so in a mediation settlement arising out of a criminal case.

Delhi High Court

Dayawati vs Yogesh Kumar Gosain on 17 October, 2017

CRL.REF.No.1/2016

 CORAM:
        HON'BLE THE ACTING CHIEF JUSTICE
        HON'BLE MS. JUSTICE ANU MALHOTRA

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Whether cheque dishonour case can be closed even in absence of complainant?

From the above discussion following aspects emerge:i) Offence under Section 138 of the Act is primarily a civil wrong. Burden of proof is on accused in view presumption under Section 139 but the standard of such proof is “preponderance of probabilities”. The same has to be normally tried summarily as per provisions of summary trial under the Cr.P.C. but with such variation as may be appropriate to proceedings under Chapter XVII of the Act. Thus read, principle of Section 258 Cr.P.C. will apply and the Court can close the proceedings and discharge the accused on satisfaction that the cheque amount with assessed costs and interest is paid and if there is no reason to proceed with the punitive aspect.

ii) The object of the provision being primarily compensatory, punitive element being mainly with the object of enforcing the compensatory element, compounding at the initial stage has to be encouraged but is not debarred at later stage subject to appropriate compensation as may be found acceptable to the parties or the Court.

iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been duly compensated, can in its discretion close the proceedings and discharge the accused.

iv) Procedure for 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 64IPC and with further powers of recovery under Section 431 Cr.P.C. With this approach, prison sentence of more than one year may not be required in all cases.

v) Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank’s slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143becomes necessary, where sentence of one year may have to be awarded and compensation underSection 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.

19. In view of the above, we hold that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C. As already observed, normal rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary taking into account the fact that compensation under Section 357(3) Cr.P.C. with sentence of less than one year will not be adequate, having regard to the amount of cheque, conduct of the accused and other circumstances.

Reportable

Supreme Court of India

M/S Meters And Instruments ... vs Kanchan Mehta on 5 October, 2017

Author: A K Goel

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Whether accused can be discharged in cheque dishonour case if he deposits cheque amount in bank account of complainant?

In every complaint under Section 138 of the Act, it may be desirable that the complainant gives his bank account number and if possible e-mail ID of the accused. If e-mail ID is available with the Bank where the accused has an account, such Bank, on being required, should furnish such e-mail ID to the payee of the cheque. In every summons, issued to the accused, it may be indicated that if the accused deposits the specified amount, which should be assessed by the Court having regard to the cheque amount and interest/cost, by a specified date, the accused need not appear unless required and proceedings may be closed subject to any valid objection of the complainant . If the accused complies with such summons and informs the Court and the complainant by e-mail, the Court can ascertain the objection, if any, of the complainant and close the proceedings unless it becomes necessary to proceed with the case. In such a situation, the accused’s presence can be required, unless the presence is otherwise exempted subject to such conditions as may be considered appropriate.
Reportable

Supreme Court of India

M/S Meters And Instruments ... vs Kanchan Mehta on 5 October, 2017

Author: A K Goel.
Citation: AIR 2017 SC 4594,2018(4) MHLJ 1

This Caselaw is overruled in 

In Re: Expeditious Trial of Cases Under Section 138 of N.I. Act 1881

Hon'ble Judges/Coram:

S.A. Bobde, C.J.I., L. Nageswara Rao, B.R. Gavai, A.S. Bopanna and S. Ravindra Bhat, JJ.

Citation: AIR 2021 SC 1957,MANU/SC/0284/2021

https://www.lawweb.in/2022/10/guidelines-of-supreme-court-for.html

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Whether court can permit compounding of offence if accused is not present before court?

Where a particular offence is compound-able by a particular person it is not even necessary for the Court to insist on a joint petition by that person and the accused. Even if the person who is entitled to compound the offence by himself files a petition before Court stating that the matter has been compounded and the case may be closed the Court will be bound to accept the same and close the case except in appropriate cases where it is felt that permission to compound the offence will have to be refused.

Kerala High Court

Y.P. Baiju vs State Of Kerala And Ors. on 30 October, 2007

Equivalent citations: 2008 CriLJ 928

Bench: R Basant

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Guidelines of supreme court for quashing of prosecution on ground of settlement between parties

We are, therefore, of the opinion that while taking a call as to whether compromise in such cases should be effected or not, the High Court should go by the nature of injury sustained, the portion of the bodies where the injuries were inflicted (namely whether injuries are caused at the vital/delicate parts of the body) and the nature of weapons used etc. On that basis, if it is found that there is a strong possibility of proving the charge under Section 307 Indian Penal Code, once the evidence to that effect is led and injuries proved, the Court should not accept settlement between the parties. On the other hand, on the basis of prima facie assessment of the aforesaid circumstances, if the High Court forms an opinion that provisions of Section 307 Indian Penal Code were unnecessary included in the charge sheet, the Court can accept the plea of compounding of the offence based on settlement between the parties.

29. At this juncture, we would like also to add that the timing of settlement would also play a crucial role. If the settlement is arrived at immediately after the alleged commission of offence when the matter is still under investigation, the High Court may be somewhat liberal in accepting the settlement and quashing the proceedings/investigation. of course, it would be after looking into the attendant circumstances as narrated in the previous para. Likewise, when challan is submitted but the charge has not been framed, the High Court may exercise its discretionary jurisdiction. However, at this stage, as mentioned above, since the report of the I.O. under Section 173, Code of Criminal Procedure is also placed before the Court it would become the bounding duty of the Court to go into the said report and the evidence collected, particularly the medical evidence relating to injury etc. sustained by the victim. This aspect, however, would be examined along with another important consideration, namely, in view of settlement between the parties, whether it would be unfair or contrary to interest of justice to continue with the criminal proceedings and whether possibility of conviction is remote and bleak. If the Court finds the answer to this question in affirmative, then also such a case would be a fit case for the High Court to give its stamp of approval to the compromise arrived at between the parties, inasmuch as in such cases no useful purpose would be served in carrying out the criminal proceedings which in all likelihood would end in acquittal, in any case.

30. We have found that in certain cases, the High Courts have accepted the compromise between the parties when the matter in appeal was pending before the High Court against the conviction recorded by the trial court. Obviously, such cases are those where the accused persons have been found guilty by the trial court, which means the serious charge of Section 307 Indian Penal Code has been proved beyond reasonable doubt at the level of the trial court. There would not be any question of accepting compromise and acquitting the accused persons simply because the private parties have buried the hatchet.

31. In view of the aforesaid discussion, we sum up and lay down the following principles by which the High Court would be guided in giving adequate treatment to the settlement between the parties and exercising its power under Section 482 of the Code while accepting the settlement and quashing the proceedings or refusing to accept the settlement with direction to continue with the criminal proceedings:

(I) Power conferred under Section 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences under Section 320 of the Code. No doubt, under Section 482 of the Code, the High Court has inherent power to quash the criminal proceedings even in those cases which are not compoundable, where the parties have settled the matter between themselves. However, this power is to be exercised sparingly and with caution.

(II) When the parties have reached the settlement and on that basis petition for quashing the criminal proceedings is filed, the guiding factor in such cases would be to secure:

(i) ends of justice, or

(ii) to prevent abuse of the process of any Court.

While exercising the power the High Court is to form an opinion on either of the aforesaid two objectives.

(III) Such a power is not be exercised in those prosecutions which involve heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. Such offences are not private in nature and have a serious impact on society. Similarly, for offences alleged to have been committed under special statute like the Prevention of Corruption Act or the offences committed by Public Servants while working in that capacity are not to be quashed merely on the basis of compromise between the victim and the offender.

(IV) On the other, those criminal cases having overwhelmingly and pre-dominantly civil character, particularly those arising out of commercial transactions or arising out of matrimonial relationship or family disputes should be quashed when the parties have resolved their entire disputes among themselves.

(V) While exercising its powers, the High Court is to examine as to whether the possibility of conviction is remote and bleak and continuation of criminal cases would put the accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal cases.

(VI) Offences under Section 307 Indian Penal Code would fall in the category of heinous and serious offences and therefore is to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 Indian Penal Code in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 Indian Penal Code is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 Indian Penal Code. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delegate parts of the body, nature of weapons used etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the later case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship.

(VII) While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge sheet has not been filed. Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come a conclusion as to whether the offence under Section 307 Indian Penal Code is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 Indian Penal Code and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.
IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 686/2014 (Arising out of S.L.P. (Criminal) No. 9547 of 2013)

Decided On: 27.03.2014

 Narinder Singh and Ors.Vs. State of Punjab and Anr.

Hon'ble Judges/Coram:
K.S. Panicker Radhakrishnan and A.K. Sikri, JJ.

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Whether police officer can compound offence under S 279 of IPC?

In the present case, the accused had injured himself in
the accident and the police officer is the complainant. The police
officer cannot come forward to compound the offence. 


IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL WRIT PETITION NO. 12 OF 2014

Shri Vishal Agarwal,  Vs   State of Goa,

 CORAM: SMT. MRIDULA R. BHATKAR, J.
 DATE: 20TH FEBRUARY, 2014
Citation;2016 CRLJ(NOC)71 Bom

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Whether high court can quash prosecution under S 498A of IPC if there is compromise beween husband and wife?

Section 498-A of the Indian Penal Code is non-compoundable. Section 4 of the Dowry Act is also non-compoundable. It is not necessary to state that non-compoundable offences cannot be compounded by a Court. While considering the request for compounding of offences the Court has to strictly follow the mandate of Section 320 of the Code. It is, therefore, not possible to permit compounding of offences Under Section 498-A of the Indian Penal Code and Section 4 of the Dowry Act. However, if there is a genuine compromise between husband and wife, criminal complaints arising out of matrimonial discord can be quashed, even if the offences alleged therein are non-compoundable, because such offences are personal in nature and do not have repercussions on the society unlike heinous offences like murder, rape etc. (See Gian Singh v. State of Punjab MANU/SC/0781/2012 : (2012) 10 SCC 303). If the High Court forms an opinion that it is necessary to quash the proceedings to prevent abuse of the process of any court or to secure ends of justice, the High Court can do so. The inherent power of the High Court Under Section 482 of the Code is not inhibited by Section 320 of the Code. Needless to say that this Court can also follow such a course.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1498 of 2014 

Decided On: 21.07.2014

 Manohar Singh Vs.  State of Madhya Pradesh

Coram:Ranjana Prakash Desai and N.V. Ramana, JJ.

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Whether case for dishonour of cheque can be compounded after conviction and sentence?

The learned Counsel for the appellant has placed
reliance on a decision of this Court in Criminal Application (Main)
No. 247/2008, Shri Satish Vaman Madkaikar Vs. Shri Xavier
D'Sozua and Another, dated 07.10.2008, in which this Court after
placing reliance on the judgment of the Hon'ble Gujarat High
Court, in Kirpalsingh Pratapsingh Vs. Balvinder Kaur Hardipsingh
Lobana and Another, reported in 2004 Criminal Law Journal 3786,
had granted permission for compounding in similar circumstances,
namely after the judgment of conviction and sentence was
confirmed by this Court.
 I have heard the learned Counsel for the parties and
perused record. This Court in Criminal Application (Main) No.
247/2008 has inter alia held that compounding of the offence can
be permitted in the interest of justice, even after the conviction
and sentence is confirmed by this Court.
9. The appellant has deposited an amount of Rs.3,375/- in
Goa State Legal Services Authority, in view of the decision of the
Hon'ble Supreme Court in the case of Damodar S. Prabhu Vs.
Sayed Babalal H., reported in (2010) 5 SCC 663.
10. In the circumstances, the following order is passed:
(a) The criminal application is allowed.
(b) The parties are permitted to compound the
offence.
(c) The impugned conviction and sentence is
set aside on account of the offence being
permitted to be compounded.
(d) The complaint filed by the respondent no.
1 stands dismissed.
(e) The appellant is acquitted of the offence

punishable under Section 138 of the N.I. Act.
IN THE HIGH COURT OF BOMBAY AT GOA
CRIMINAL APPLICATION (MAIN) NO. 98 OF 2015

Kashinath Balu Gaonkar V  Sunita Krishnajirao Dessai,

CORAM:- C. V. BHADANG, J.
 DATE:- 18thAPRIL, 2015
Citation; 2016 ALLMR(CRI)1087

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Whether compounding of offences is permissible even if warrant is issued against accused?

 It was Submitted at the Bar that no binding precedent is available on the aspect whether personal presence of the accused is necessary to consider a prayer for composition. After discussions at the Bar and after some research, the learned Counsel for the petitioner himself brings to my notice the decision in Mathew v. State of Kerala 1986 KLT 128, where Justice S. Padmanabhan, in paragraph 8, has observed thus in his clear and lucid style:

Where a particular offence is compound-able by a particular person it is not even necessary for the Court to insist on a joint petition by that person and the accused. Even if the person who is entitled to compound the offence by himself files a petition before Court stating that the matter has been compounded and the case may be closed the Court will be bound to accept the same and close the case except in appropriate cases where it is felt that permission to compound the offence will have to be refused.

Those observations perfectly support the inclusions that I have reached.

22. I shall now attempt to narrate my conclusions. They are:

(1) Composition under Section 320, Cr. P. C. is a unilateral act.

(2) The victim (person shown in column 3 of Section 320(1) and 320(2)) can himself make an application for composition.

(3) It is not necessary for the Court to insist on a joint application for composition. The victim can of course make a joint application along with the accused.

(4) It is not necessary for the Court to insist on the personal appearance of the accused before Court to consider an application for composition under Section 320, Cr. P.C.

(5) The mere fact that the Court has already issued a non-bailable warrant against the accused and that is pending is no reason for the Court not to proceed further with the case. All steps for which personal presence of the accused is not necessary can be continued even if the non-bailable warrant remains unexecuted and the accused has not personally appeared.

Kerala High Court

Y.P. Baiju vs State Of Kerala And Ors. on 30 October, 2007

Equivalent citations: 2008 CriLJ 928

Bench: R Basant

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