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TMI Blog2007 (10) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 owed to the Complainant. 4. The termination of the services of the Complainant resulted in proceedings being filed before the Industrial Tribunal and they ended in an award dated 24/09/2001 which was the result of settlement arrived at between the parties on 6/09/2001. As per the said settlement/award the first installment of Rs. 10,000/-was to be paid to the Complainant on 17/08/2001, the second installment of Rs. 20,000/-was to be paid on 7/09/2001, the third installment of Rs. 30,000/-was to be paid on or before 30/10/2001 and the final installment of Rs. 31,600/- was to be paid on or before 30/11/2001. 5. The complaint was filed on 29/01/2002. As per the Complainant, the said settlement before the Industrial Tribunal on behalf of the accused nos. 2 and 3 was signed by the accused who was the Managing Director of accused no. 2/company and accused no. 3/firm. It was the case of the Complainant that towards the payment of the third installment of Rs. 30,000/-the accused gave to the Complainant cheque dated 15/11/2001 for Rs. 30,000/-issued on Development Credit Bank, Vasco-da-Gama, Goa. As per the Complainant, the said cheque was drawn by the accused for and on behalf of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1,600/- under the said award. 11. The learned Magistrate came to the conclusion that the Complainant had filed the present complaint against the accused in the capacity of Managing Director of accused no. 2. The learned Magistrate also came to the conclusion that after filing the complaint, the Complainant received first Rs. 30,000/-and then Rs. 60,000/-and being so, the learned Magistrate observed that she failed to understand on what basis the Complainant had filed the complaint and further came to the conclusion that the Complainant had the intention of grabbing extra amount for which the Complainant was not entitled to. In case the accused no. 2 had paid to the Complainant Rs. 45,000/-as on 13/11/2002 and thereby the amount due on the subject cheque of Rs. 30,000/-one fails to understand as to why the learned Magistrate proceeded to explain a substance of accusation to the accused on 23/07/2003 in case subsequent payment had the effect of wiping out the offence committed by the accused. As regards the notice, the learned Magistrate came to the conclusion that there was no provision in the Act to send notice to one accused which would comply with the requirement of sending no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... criminal trial. 14. The conclusions arrived at by the learned trial Court on the basis of evidence produced are highly unreasonable and therefore are required to be disturbed. 15. Admittedly, the Complainant had received as on 13/11/2002 Rs. 45,000/-i.e. more amount than due on the subject cheque and yet the learned JMFC proceeded to frame substance of accusation on 23/07/2003. One would wonder as to why the learned Magistrate proceeded to frame the substance of accusation against the accused in case by that date the payment due on the subject cheque was made to the Complainant. This aspect seems to have been completely lost sight of by the learned Magistrate who even made some uncharitable remarks against the Complainant that he had filed the complaint only with the intention of grabbing extra amount for which he was not entitled to. As held by this Court in William Rosario Fernandes v. Cabral and Co. and Ors. 2007 (1) Bom. C.R. (Cri.) 141 the offence under Section 138 of the Act is completed in all respects upon the failure by the accused to comply with the notice of demand. If payment is made within the said period of notice, then no offence is committed but in case of fai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lope shows that it was addressed thus: Mr. Narayan R. Bandekar Managing Director, M/s. Rajaram Bandekar (Sirigao) Mines P. Ltd. M/s. Anant V. Sarmalkar Nitin Chamber, Swatantra Path, Vasco-da-Gama. 17. The said notice, as per the postal endorsement was returned as refused, return to sender. The Complainant admitted that the said legal notice was enclosed in one envelope and was jointly addressed to all the accused and that he had not sent separate notices in separate envelopes. He denied the suggestion that the said notice was not issued in the name of the accused Narayan Bandekar in his personal capacity. The accused in his statement recorded under Section 313 of the Code denied that he had received the legal notice from the Complainant. In my view, the manner the Complainant had addressed the said notice, which address has been reproduced herein above, clearly shows that it was sent to the accused describing him as Managing Director of the said company and the said firm and when it was returned by the postman as refused, it is deemed to have been refused by the accused Narayan R. Bandekar and in such a situation I am not inclined to accept the submission of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the aforesaid provision was not brought to its notice and it was also not in tune with the observations of the Apex Court in I.C.D.S. Ltd. v. Beemna Shabeer and Anr. 2002 (4) ALL M.R. 270 wherein the Apex Court had stated that the legislature has been careful enough to record not only discharge in whole or in part of any debt but the same includes other liability as well. This Court after taking into account some views expressed by other High Courts held as follows: Section 138 of the Act deals with a cheque drawn by a person for the discharge, in whole or in part, of any debt or other liability. The section does not say that the cheque should have been drawn for the discharge of any debt or other liability of the drawer towards the payee. If the intention of the Parliament was otherwise the words of any debt or other liability would have been further qualified by adding the words of the drawer. Section 139 of the Act which creates a mandatory legal presumption again uses the words for the discharge, in whole or in part, of any debt or other liability which only means that the debt or other liability may be due from any person and it is not necessary that the debt or other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er had issued the subject cheque on behalf of accused nos. 2 and 3. In view of my finding that the cheque was issued by the accused to meet the liabilities of A2 and A3 under the award it is not necessary to dilate further on the provision of Section 43 of the Act, which is clearly inapplicable to the facts of the case. 21. The accused had also failed to prove that he stood as surety by issuing the said cheque. It was not just enough for the accused to have stated so but it was necessary to prove the same by preponderance of probabilities. Such a plea was not put forward to the Complainant and it was taken as an afterthought. 22. In the light of the above discussion, the accused could not have escaped his conviction under Section 138 of the Act. As a result, the appeal deserves to succeed and the acquittal of the accused reversed. The accused is therefore hereby convicted under Section 138 of the Negotiable Instruments Act, 1881. 23. Admittedly, the Complainant received Rs. 45,000/-from A2 on 13/11/2002 and Rs. 60,000/-from the accused later. On behalf of the accused an application has been filed for compounding the offence under Section 138 of the Act which has now been m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of some property or other consideration in return for an agreement not to prosecute or inform on one who has committed a crime. There are three elements to this offence at common law, and under the typical compounding statute: (1) the agreement not to prosecute; (2) knowledge of the actual commission of a crime; and (3) the receipt of some consideration. 25. Compounding essentially involves a compromise or agreement and there cannot be a one way traffic whilst entering into a compromise and that would be both for the purpose of Section 147 of the Act as well as Section 320 of the Code. If the Complainant is not willing to accept a compromise, the same cannot be imposed upon him by the Court and the matter will have to be dealt with in accordance with law. Application filed by the accused, therefore needs to be rejected. 26. Learned Counsel on behalf of the accused has also brought to my notice the judgment of this Court in this case of said William Rosario Fernandes (supra) wherein fine of Rs. 5,000/-was imposed. He has also brought to my notice the judgment of the Apex Court in Narsingh Das Tapadia v. Goverdhan Das Partani and Anr. AIR2000SC2946 wherein the Apex Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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