A. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 482 – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(x) -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule 7 -- Supplementary charge-sheet – Direction of Commission for adding charge under SC/ST Act – Power of -- No external agency can dictate the course of investigation in a criminal case -- It is within the exclusive jurisdiction of the police -- Court also cannot supervise the investigation -- However, in exceptional situations, Superior Courts may monitor an investigation -- But that is not the same as supervision -- Supplementary Report filed by the Police, at the direction of the Commission, is quashed.

(Para 7-9)

B. Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(x) -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule 7 – Direction of Commission for adding charge under SC/ST Act – Power of -- Commission is empowered to conduct an inquiry to “whether proper charge sheet has been filed mentioning the relevant sections of IPC together with the PCR Act, 1955 and SCs & STs (POA) Act, 1989 in Court” -- This is not a power to dictate the course of the investigation -- Commission is competent to point out any lapses or laches in the investigation -- Commission could only have brought to notice of the Police the need for a proper or further investigation and it was for the Police to take a call.

(Para 8)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 482 – Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989, Section 3(1)(x) -- Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Rules, 1995, Rule 7 -- Partly quashing of charge – Power of High Court u/s 482 Cr.P.C. -- There is no prohibition under law for quashing a charge-sheet in part -- U/s 482, all that the High Court is required to examine is whether its intervention is required for implementing orders under the CrPC or for prevention of abuse of process, or otherwise to secure the ends of justice – A charge-sheet filed at the dictate of somebody other than the police would amount abuse of the process of law and hence the High Court ought to have exercised its inherent powers u/s 482 to the extent of the abuse -- No requirement that the charge-sheet has to be quashed as a whole and not in part.

(Para 7-9)

Prevention of Money-Laundering Act, 2002 (15 of 2003), Section 45 – Code of Criminal Procedure, 1972 (2 of 1973), Section 439 – Constitution of India, Article 14, 21 -- Offence under money-laundering -- Conditions imposed for grant of bail – Sustainability of -- Section 45 of the 2002 Act struck down as a whole – Section 45(1) of the Prevention of Money-Laundering Act, 2002, insofar as it imposes two further conditions for release on bail, to be unconstitutional as it violates Articles 14 and 21 of the Constitution of India -- All the matters pending before Supreme court, in which bail has been denied, because of the presence of the twin conditions contained in Section 45, will now go back to the respective Courts which denied bail -- All such orders are set aside, and the cases remanded to the respective Courts to be heard on merits, without application of the twin conditions contained in Section 45 of the 2002 Act.

(Para 20-45)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143 -- Cheque bounce case – Sentence for simple imprisonment of one year and also to pay a fine of Rs.11,50,000/-, in default, to suffer further simple imprisonment for six months -- Parties amicably settled their dispute -- Parties to abide by the terms and conditions as contained in the Memorandum of Settlement without fail -- Impugned order passed by the High Court set aside and sentence imposed upon the appellant quashed.

(Para 2-6)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Indian Penal Code, 1860 (45 of 1860), Section 174-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 82 -- Cheque bounce case – Proclaimed person – Quashing of FIR-- Non-appearance of the petitioner before Ld. Trial Court is justified for the reason that he was not served at the given address -- After passing of the order, the petitioner has been granted anticipatory bail -- Matter compromised, complainant has withdrawn the complaint u/s 138 of the NIA Act -- Continuation of criminal proceedings against the petitioner under Section 174-A IPC would amount to abuse of process of law – Order declaring proclaimed person and subsequent FIR quashed.

 (Para 1, 7,8)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143 – Code of Criminal Procedure, 1973 (2 of 1974), Section 258 – Cheque bounce complaint – Summary trial – Discharge of accused – Compounding of offence -- 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 –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 -- Court is entitled to close the proceedings in exercise of its powers u/s 143 of the Act read with Section 258 Cr.P.C.

(Para 11, 18 (i)-(iii), 19)

B. Negotiable Instruments Act, 1881 (26 of 1881), Chapter XVII, Section 138 – Cheque bounce complaint – Summary trial -- Online hearing of case – Online appearance of accused – Exemption of accused from personal appearance -- Service of summons can be by post/ e-mail/ courier -- Summons ought to indicate that the accused could make specified payment by deposit in a particular account before the specified date and inform the court and the complainant by e-mail -- 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 -- Some cases of Section 138 cases can be decided online -- If complaint with affidavits and documents can be filed online, process issued online and accused pays the specified amount online, it may obviate the need for personal appearance of the complainant or the accused -- Only if the accused contests, need for appearance of parties may arise which may be through counsel and wherever viable, video conferencing can be used -- Personal appearances can be dispensed with.

(Para 16, 17, 20)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143 – Code of Criminal Procedure, 1973 (2 of 1974), Section 357(3), 431 – Indian Penal Code, 1860 (45 of 1860), Section 64 -- Cheque bounce complaint – Summary trial -- Discretion of the Magistrate to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed -- Court has jurisdiction u/s 357(3) Cr.P.C. to award suitable compensation with default sentence under Section 64 IPC 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.

(Para 12, 18(iv))

D. Negotiable Instruments Act, 1881 (26 of 1881), Chapter XVII, Section 138, 143 – Code of Criminal Procedure, 1973 (2 of 1974), Section 264, 357(3) – Cheque bounce complaint – Summary trial – Procedure for summoning -- Evidence of the complaint can be given on affidavit -- 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 – Normal rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure except where exercise of power under second proviso to Section 143 becomes necessary.

(Para 18(iv), (v), 19)

E. Negotiable Instruments Act, 1881 (26 of 1881), Chapter XVII, Section 138 – Code of Criminal Procedure, 1973 (2 of 1974), Chapter XXIA -- Cheque bounce complaint – Plea bargaining -- Speedy trial -- It will be open to the Court to consider the provisions of plea bargaining -- Trial can be on day to day basis and endeavour must be to conclude it within six months.

(Para 20)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim maintenance to wife/minor son -- Respondent /wife claims that the petitioner is serving in private company and has been earning Rs.25,000/- per month -- Amount of Rs.7,000/- per month by no stretch of imagination can be said to be on higher side for maintenance of the wife and minor son especially in the present scenario of high rise in the cost of living.

(Para 5)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Indian Penal Code, 1860 (45 of 1860), Section 174-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 82 -- Cheque bounce case – Proclaimed person – Quashing of FIR-- Petitioner could not appear before the trial Court as he was stated to have not been served at the address, where he was residing -- After the passing of the impugned order declaring him as a proclaimed person, he had surrendered before the trial Court and was ordered to be released on bail -- In such circumstances, especially, when the petitioner has duly surrendered before the trial Court, continuation of proceedings under Section 174-A IPC would be an abuse of the process of Court.

(Para 5)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 357, 389, 401 -- Cheque bounce case – Appeal against conviction – Suspension of sentence -- Accused was sentenced to undergo R.I. for a period of 1 year and compensation for amount of cheques in question – Accused preferred an appeal -- Suspension of sentence given, with a direction to accused-appellant to deposit 1/3rd of the compensation amount – Accused is aggrieved by such condition – Held, no merit in the revision petition, rather the same is not maintainable -- Appellate Court is justified in imposing any term or condition while suspending the sentence of the accused-appellant, rather the Appellate Court showed indulgence to the accused appellant by asking him to deposit 1/3rd of the compensation only, instead of the complete one -- No illegality or infirmity in the impugned order, which might have called for interference.

(Para 1-4)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 319 – Indian Penal Code, 1860 (45 of 1860), Sections 498-A, 304-B – Dowry death -- Additional accused – Summoning of – In statement recorded during trial there is no specific allegations against the respondents with regard to demand of dowry or harassment to the deceased in connection thereof – Conversation with regard to alleged demand and beating by in-laws family members of the deceased was made between the deceased and her mother – Statement of the brother, in this regard, is mere hearsay – Mother of the deceased has not been examined – Beatings by all the five family members of her in-laws do not find corroboration from the post mortem report – Testimony of the brother is not at all sufficient to satisfy the test of more than a prima facie case for summoning the additional accused.

 (Para 7-14)

B. Dowry Prohibition Act, 1961, (Act No. 28 of 1961), Section 2 – Indian Penal Code, 1860 (45 of 1860), Sections 498-A, 304-B -- Dowry – Dowry death case -- Demands relating to birth of child -- Any demand made in connection with birth of the child does not fall within the definition of dowry u/s 2 of the Dowry Prohibition Act, 1961.

(Para 12)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 391 – Cheque bounce case -- Additional evidence at appellate stage -- In application pleading that he was not well-conversant with the technicalities of law and even his earlier counsel also did not give him proper advice and as such due to the negligence of his previous counsel, he could not produce the certified copies of the complaints as well as copy of the FIR – Held, respondent cannot be permitted to take the said pleas.

(Para 11)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 391 -- Cheque bounce case --Additional evidence at appellate stage -- Evidence sought to be produced by way of additional evidence regarding filing of similar complaints under Section 138 of the N.I. Act by the complainant against some other persons was well within the knowledge of the respondent, but he did not make any effort to lead any evidence to that effect before the trial Court itself at the time of his defence evidence – Application should not have been allowed by the Ld. Appellate court.

(Para 13, 15)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Criminal Procedure, 1973 (2 of 1974), Section 391 – Cheque bounce case -- Additional evidence -- Bearing on the case -- Production of copies of complaints, judgments and the FIR so to be lodged by the respondent by way of additional evidence has no material bearing on the facts of the case inasmuch as each case has to be decided on its own merits -- Judgments of other cases may not influence while deciding a particular case and cannot be a guiding factor as each case has its own peculiar facts.

(Para 17)

Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Written statement – Right of – Defence struck off -- Court has proceeded with the case in a hurry without appreciating and realizing consequence of rendering the petitioner handicap in making his written submissions to contest claim of the respondent-wife -- No doubt, provisions under Section 125 Cr.P.C. were enacted with an intent to provide immediate succor to destitute wife, neglected children and parents etc., equally true is that the proceedings are summary in nature but at the same time, without finding any fault on the part of a litigant, his rights to submit his pleadings before the Court cannot be scuttled -- A serious prejudice is likely to be caused to the petitioner in case he is not permitted to file his written statement and give his side of the story to contest claim of the respondent-wife -- Order passed by the Court below striking off defence of the petitioner cannot be allowed to sustain and liable to be set aside.

(Para 4)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 319 -- Summoning u/s 319 Cr.P.c. -- Degree of satisfaction required under Section 319 Cr.P.C., is much more higher than the prima facie satisfaction at the time of summoning -- Test that has to be applied is one which is more than prima facie case as required at the time of framing of charge and just short of final conclusion.

(Para 13,14)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 319 -- Depositions made by the complainant during course of investigation was not found sufficient to even frame charge against the petitioner -- With the improved statements that too on the basis of disclosure made by the mother soon before her death would not be sufficient to presume existence of more than prima facie case for summoning the petitioner under Section 319 Cr.P.C. -- Degree of satisfaction required for summoning at this stage has to be based upon material to be sufficient to create reasonable prospects of conviction of the petitioner.

(Para 15)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 --  Code of Criminal Procedure, 1973 (2 of 1974), 482 – Cheque bounce case – Vicarious liability – Quashing of complaint -- Contention that the cheque in question not issued and signed by petitioner  – Fact of complaint are that he was director and authorized signatory and the firm issued cheque in question and upon presentation it was dishonoured with the remarks “Insufficient Funds” – Held, the petitioner has been summoned in view of Section 141 of Negotiable Instruments Act which imposes vicarious liability upon every person who at the time of offence was in charge of conducting the business of the company – No ground to quash the impugned complaint or to interfere with the well reasoned order of summoning.

(Para 2,8)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Cheque bounce case – Cross-examination of complainant – Re-calling the witness – Petitioner- company seeks to recall the complainant on one date to cross examine, whether the amount in discharge of which the cheques in question in favour of the respondent has been issued finds reflection in his accounts/income tax returns – Held, examination of the complainant on the afore issue would have a bearing on the adjudication of the dispute between the parties -- Application under Section 311 Cr. P.C to recall allowed.

(Para 7)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Complaint u/s 138 of N.I. Act – Quashing of -- Loan agreement nowhere shows that cheques in question have been taken by the respondent as security cheques -- Whether the respondent has taken blank signed cheques as security or post-dated cheques for payment of loan installments in case of default as security is to be decided by the trial Court on the basis of the evidence produced before it -- Finding of fact cannot be given at this stage by High Court without any evidence – No ground is made out for quashing the complaints.

(Para 5, 7)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Arbitration clause -- Complaint u/s 138 of N.I. Act – Quashing of -- Contention that there is arbitration clause in the agreement, therefore, complaints are not maintainable – Held, this argument has no force -- When the cheques have been dishonoured and returned back unpaid by the Bank and legal notices have been sent, then non-payment of the amount within prescribed period gave cause of action to file the complaints under Section 138 of the Negotiable Instruments Act.

(Para 6, 7)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 142 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 311 – Cheque bounce case -- Application for additional witness -- Complaint was filed by Prop. of Firm through G.P.A. -- During the pendency of the proceedings, an application u/s 311 Cr.P.C. was filed to the effect that proprietor of firm was inadvertently not examined during the evidence of complainant – Held, filing of application u/s 311 Cr.P.C. is nothing but has been filed to fill up the lacuna in this case -- If application is allowed and the complainant is allowed to fill up the lacuna, then it will cause prejudice to the case of the accused – Application rightly dismissed.

(Para 6-9)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 --  Code of Criminal Procedure, 1973 (2 of 1974), Section 357(3), 421(1), 431 – Indian Penal Code, 1860 (45 of 1860), Section 70 – Cheque bounce case – Compensation not paid – Default sentence undergone -- Whether the compensation still recoverable -- High Court held that despite the fact that the default sentence was undergone, yet, under the provisions of the Code of Criminal Procedure, compensation was recoverable – Held, object of the legal fiction created by Section 431 is to extend for the purpose of recovery of compensation until such recovery is completed and this would necessarily take not only to Section 421 of the Cr.P.C. but also to Section 70 of the Penal Code – Judgment of High Court, upheld.

(Para 4, 29)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 372, 397, 401 – Right to Appeal – Right to Revision -- Right of appeal or revision is creation of a Statute and, therefore, if the Statute does not confer any right, a person cannot avail of such a remedy, which is not specifically provided for under the Statute -- As the law stands the right to appeal against inadequacy of the sentence has been given only to the State Government and the complainant or a third person has no such right.

(Para 10)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 372, 397, 401 – Appeal/ Revision for enhancement of sentence – Right of -- As per Section 372 Cr. P.C. Proviso thereto, right of appeal has been provided to a victim in particular specified circumstances only -- A victim of crime can, under the following circumstances, prefer an appeal against (i) an order of acquittal of the accused; (ii) convicting the accused of a lesser offence; and (iii) imposing inadequate compensation – It is thus apparent that no appeal lies for enhancement of sentence -- There is no restriction or bar on a victim to approach the Courts conferred with revisional powers for invoking and exercising their revisional jurisdiction even for enhancement of sentence.

(Para 10-13)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 401 – Revision – Right of -- Section 401 (4) of the Code, remedy of revision is limited to the situation where remedy of appeal is not available to party -- This would not mean that any person can maintain a revision who cannot file appeal -- Power of invoking revisional jurisdiction by a party has to be seen in the context of the intention behind the amendment made in the Code of Criminal Procedure and, therefore, has to be viewed in the context of remedy of appeal – Appeal has been restricted to the 'victim(s)' only -- Therefore, it can safely be said that the revision can be maintained by a victim alone, irrespective of the fact whether he is a complainant or not and none else.

(Para 13)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 2(wa), 397, 401 -- Complainant – Victim – Revision for enhancement of sentence – Maintainability of -- Complainant was neither present on the spot nor has he suffered any loss or injury, thus, not a victim -- Revision would not be maintainable as the complainant herein is not a victim as defined under Section 2 (wa) of the Code of Criminal Procedure -- If that be so, the revision preferred by the complainant could not have been entertained by the Additional Sessions Judge.

(Para 16)

Code of Criminal Procedure, 1973 (2 of 1974), Section 161, 319 -- Additional accused – Summoning u/s 319 Cr.P.C. – Evidence collected by I.O. during investigation – Consideration of -- Trial court would be competent to exercise its power on the basis of examination-in-chief -- However, in a case, where plethora of evidence was collected by the I.O. during investigation which suggested otherwise, the trial court was at least duty bound to look into the same while forming prima facie opinion and to see as to whether ‘much stronger evidence than mere possibility of complicity has come on record -- There is no satisfaction of this nature – High Court too blissfully ignored the said material -- Except reproducing the discussion contained in the order of the trial court and expressing agreement therewith, nothing more has been done -- Such orders cannot stand judicial scrutiny -- Order of summoning the appellants under Section 319 Cr.P.C., set aside.

(Para 15,16)

Code of Criminal Procedure, 1973 (2 of 1974), Section 155, 207 -- First Information Report – Right of accused – Uploading on police website – Directions issued:

(a)     An accused is entitled to get a copy of the First Information Report at an earlier stage than as prescribed under Section 207 of the Cr.P.C.

(b)     An accused who has reasons to suspect that he has been roped in a criminal case and his name may be finding place in a First Information Report can submit an application through his representative/agent/parokar for grant of a certified copy before the concerned police officer or to the Superintendent of Police on payment of such fee which is payable for obtaining such a copy from the Court. On such application being made, the copy shall be supplied within twenty-four hours.

(c)     Once the First Information Report is forwarded by the police station to the concerned Magistrate or any Special Judge, on an application being filed for certified copy on behalf of the accused, the same shall be given by the Court concerned within two working days. The aforesaid direction has nothing to do with the statutory mandate inhered under Section 207 of the Cr.P.C.

(d)     The copies of the FIRs, unless the offence is sensitive in nature, like sexual offences, offences pertaining to insurgency, terrorism and of that category, offences under POCSO Act and such other offences, should be uploaded on the police website, and if there is no such website, on the official website of the State Government, within twenty-four hours of the registration of the First Information Report so that the accused or any person connected with the same can download the FIR and file appropriate application before the Court as per law for redressal of his grievances. It may be clarified here that in case there is connectivity problems due to geographical location or there is some other unavoidable difficulty, the time can be extended up to forty-eight hours. The said 48 hours can be extended maximum up to 72 hours and it is only relatable to connectivity problems due to geographical location.

(e)     The decision not to upload the copy of the FIR on the website shall not be taken by an officer below the rank of Deputy Superintendent of Police or any person holding equivalent post. In case, the States where District Magistrate has a role, he may also assume the said authority. A decision taken by the concerned police officer or the District Magistrate shall be duly communicated to the concerned jurisdictional Magistrate.

(f)      The word 'sensitive' apart from the other aspects which may be thought of being sensitive by the competent authority as stated hereinbefore would also include concept of privacy regard being had to the nature of the FIR. The examples given with regard to the sensitive cases are absolutely illustrative and are not exhaustive.

(g)     If an FIR is not uploaded, needless to say, it shall not enure per se a ground to obtain the benefit under Section 438 of the Cr.P.C.

(h)     In case a copy of the FIR is not provided on the ground of sensitive nature of the case, a person grieved by the said action, after disclosing his identity, can submit a representation to the Superintendent of Police or any person holding the equivalent post in the State. The Superintendent of Police shall constitute a committee of three officers which shall deal with the said grievance. As far as the Metropolitan cities are concerned, where Commissioner is there, if a representation is submitted to the Commissioner of Police who shall constitute a committee of three officers. The committee so constituted shall deal with the grievance within three days from the date of receipt of the representation and communicate it to the grieved person.

(i)      The competent authority referred to hereinabove shall constitute the committee, as directed herein-above, within eight weeks from today.

(j)      In cases wherein decisions have been taken not to give copies of the FIR regard being had to the sensitive nature of the case, it will be open to the accused/his authorized representative/parokar to file an application for grant of certified copy before the Court to which the FIR has been sent and the same shall be provided in quite promptitude by the concerned Court not beyond three days of the submission of the application.

(k)     The directions for uploading of FIR in the website of all the States shall be given effect from 15^th November, 2016.

(Para 12)

A. Constitution of India, Article 21 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 41, 41-A – Arrest of Advocate/ Doctor – Procedure of law violated – Life and liberty of accused -- Compensation to accused arrested -- Arrest of the petitioners was not made by following the procedure of arrest -- Dignity of the petitioners, a doctor and a practicing Advocate has been seriously jeopardized -- It is an assault on his/her identity – Said identity is sacrosanct under the Constitution – Article 21 has been violated and the petitioners were compelled to face humiliation – Not only there are violation of guidelines issued in the case of D.K. Basu (1997) 1 SCC 416, there are also flagrant violation of mandate of law enshrined under Section 41 and Section 41-A of Cr.PC -- A sum of Rs.5,00,000/- (rupees five lakhs only) towards compensation is awarded to each of the petitioners to be paid by the State of M.P. within three months hence -- It will be open to the State to proceed against the erring officials, if so advised.

(Para 22-27)

B. Indian Penal Code, 1860 (45 of 1860), 420 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Cheating – Civil Dispute -- On a perusal of the FIR, it is clear to us that the dispute is purely of a civil nature, but a maladroit effort has been made to give it a criminal colour – No ingredient of Section 420 IPC is remotely attracted -- Even if it is a wrong, the complainant has to take recourse to civil action – Not the case where cognizance of the offence can be taken by the court and the accused can be asked to face trial -- Entire case projects a civil dispute and nothing else – Prosecution initiated against the petitioners stands quashed.

(Para 28, 29)

A. Indian Penal Code, 1860 (45 of 1860), Section 304-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 – Compounding of offence – Quashing of criminal proceedings -- There is a distinction between the power of the Court to compound an offence under Section 320 Cr. P.C. and quashing of criminal proceedings in exercise of power under Section 482 Cr. P.C.

(Para 12)

B. Indian Penal Code, 1860 (45 of 1860) -- Offence u/s 304 A of IPC – Nature of -- It would indeed be paradoxical and incorrect to hold that the offence under Section 304-A is private in nature -- When a person or persons lose their life/lives due to the rash and negligent act of the accused, the question of mens rea or intention in such a situation pales into insignificance.

 (Para 16)

C. Indian Penal Code, 1860 (45 of 1860), Section 304-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 2(wa), 482 – Death due to negligence driving – Offence u/s 304A IPC – Compromise with the victims’ family – Quashing of FIR -- To quash the proceedings under Section 304-A solely on the basis of a settlement or compromise arrived at between the accused and the legal representatives is not permissible -- Inclusion of the legal representatives in the definition of victim does not clothe him/them to enter into such a settlement, though the legal representative, undoubtedly has the authority to file an appeal or receive compensation -- However, power of the High Court under Section 482 Cr. P.C. can nevertheless be exercised in appropriate matters where it is felt that a prima facie case is not made out in consonance with the settled principles of law – There can indeed be no fetter on this power to act for securing the ends of justice or to prevent the abuse of process of law – However this observation for a moment is not to be construed as taking the possibility of a conviction being bleak due to settlement, to be a relevant factor for quashing the FIR under Section 304-A IPC.

(Para 19,20)

D. Indian Penal Code, 1860 (45 of 1860), Section 304-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 2(wa), 482 – Death due to negligence driving – Offence u/s 304A IPC – Compromise with the victims’ family – Quashing of FIR – Reference: whether the crime registered u/s 304-A IPC can be quashed on the basis of compromise arrived at by the legal heir/legal representative of the victim/deceased with the offender – Reference is answered in the negative as there can be no quashing of an offence registered u/s 304-A and subsequent proceedings, solely on the basis of a compromise arrived at between the legal heirs/representatives of the victim (deceased) and the accused.

(Para 1, 20)

Indian Penal Code, 1860 (45 of 1860), Section 498-A, 406, 420, 506 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cruelty – Misappropriation of Istridhan – Criminal breach of trust -- FIR against sister-in-law and her husband – Quashing of FIR -- Main grouse of the complainant was that with respect to the illness of husband before the marriage -- There is not even a whisper that the petitioners were entrusted with any dowry articles -- Entrustment is sine-quo-non for the offence under Section 406 IPC -- It cannot be believed that the petitioners who are admittedly residing separately were entrusted with the istridhan -- No overt act had been attributed to the petitioners, not even a single instance of harassment or cruelty or demand of dowry had been referred against the petitioners – On the basis of wild allegations, the petitioners cannot be put to the ordeal of trial -- Continuation of criminal proceedings against the petitioners would be sheer abuse of process of law -- Impugned FIR and consequent proceedings taken therein, against the petitioners are quashed.

(Para 18,19)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 -- Object of provisions of Section 125 Cr.P.C -- If any person having sufficient means, neglects or refuses to maintain his wife, who is unable to maintain herself or her legitimate or illegitimate child (children) unable to maintain itself (themselves), or his father or mother who are unable to maintain himself/herself, the Court upon proof of negligence or refusal, order such person to pay maintenance to his wife or child (children) or parents, as the case may be -- Primary object is to secure relief to the deserted and destitute wives, discarded and neglected children and disabled and helpless parents and to ensure that no wife, child or parent is left beggared and destitute on the scrap-heap of the society so as to be tempted to commit crime or to tempt others to commit crime in regard to them.

(Para 11)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim maintenance -- As far as 'interim' maintenance is concerned, Section 125 of the Code was originally enacted, did not expressly empower the Court to make such order and direct payment of interim maintenance -- Court is having implied power to pass such an order -- Remedy provided by Section 125 Cr.P.C. is a summary remedy securing reasonable sum by way of maintenance subject to a decree passed by the competent civil court -- In absence of any express bar or prohibition, Section 125 Cr.P.C. cannot be interpreted as conferring power by necessary implication to make interim order of maintenance subject to final outcome in the application -- As per provisions of the Section, two conditions are precedent to show that the wife is unable to maintain herself and that the husband has neglected or refused to maintain his wife.

(Para 11)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife – Duty of husband -- It is the obligation of the husband to maintain his wife, he cannot be permitted to plead that he is unable to maintain the wife due to financial constraints as long as he is capable of earning.

(Para 14)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife – Object of provision -- When the woman leaves the matrimonial home, the situation is quite different -- She is deprived of many a comfort -- Sometimes the faith in life reduces -- Sometimes, she feels she has lost the tenderest friend -- There may be a feeling that her fearless courage has brought her the misfortune -- At this stage, the only comfort that the law can impose is that the husband is bound to give monetary comfort -- That is the only soothing legal balm, for she cannot be allowed to resign to destiny.

(Para 16)

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife – Husband’s income of Rs. 35,000/- per month – Wife awarded maintenance @ Rs. 20,000/-  p.m. – Once the respondent-wife has made a specific averment with regard to capacity of the petitioner then onus shift upon the husband-petitioner to prove that he does not have sufficient means to pay maintenance -- Petitioner has not brought on record his income-tax returns and has not rebutted the averments with regard to his income -- Mere denial to earn anything is not a ground to deny maintenance -- It is only in case the wife is unable to maintain herself, then maintenance is to be paid by the husband -- Nothing on record to show that respondent-wife has any independent source of income -- Appropriate maintenance commensurate with the needs of wife keeping in view the paying capacity of her husband, which is a legitimate right of the wife and same should not be denied to her -- No element of greed should be seen into genuine needs of the wife – Maintenance of Rs.20,000/- p.m. affirmed.

(Para 1,20,21)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Unable to maintain – Capable of earning -- Highly qualified wife – Nowhere it has been mentioned, the wife who is capable of earning is not entitled for maintenance -- Wife who is unable to maintain herself is entitled for maintenance.

(Para 8)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Maintenance to wife and children – Object of -- Section 125 Proceedings are of summary in nature and are intended to enable destitute wives and children, whether they are legitimate or illegitimate and to get maintenance in a speedy manner -- It is meant to achieve social purpose and to prevent vagrancy and destitution -- It provides a speedy remedy for the supply of food, clothing and shelter to the deserted wife.

(Para 14)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 125 – Interim maintenance to wife – An amount of Rs. 20,000/- per month has been awarded to wife as interim maintenance from the date of filing of the application -- Husband is serving in a private company and earning handsome salary i.e. Rs. 1,10,000/- per month after deduction of the tax – Awarded amount cannot be said to be on the excessive side.

(Para 18)

Code of Criminal Procedure, 1973 (2 of 1974), Section 227, 319 -- Summoning of accused u/s 319 Cr.P.C. – Discharge u/s 227 Cr.P.C. -- Permissibilty of -- Exercise of the power u/s 319 of the Cr.P.C., must be placed on a higher pedestal -- An order for addition of an accused made after considering the evidence cannot be undone by coming to the conclusion that there is no sufficient ground for proceeding against the accused without appreciation of evidence -- Accused summoned u/s 319 of the Cr.P.C., are entitled to invoke remedy under law against an illegal or improper exercise of the power u/s 319, but cannot have the effect of the order undone by seeking a discharge u/s 227 of the Cr.P.C.

(Para 10-14)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 -- Compromise quashing of criminal proceedings -- Compounding of offence -- Inherent jurisdiction of High Court :

--      Power conferred u/s 482 of the Code is to be distinguished from the power which lies in the Court to compound the offences u/s 320 of the Code. No doubt, u/s 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.

--       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.

(Para 31 (I), (II))

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Indian Penal Code, 1860 (45 of 1860), Section 302, 376, 395 – Heinous offence offences like murder, rape, dacoity, etc. – Compromise quashing of criminal proceedings -- Inherent jurisdiction of High Court -- 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.

(Para 31 (III))

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Prevention of Corruption Act, 1988 (49 of 1988) -- Compromise quashing of criminal proceedings – Inherent jurisdiction of High Court -- 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.

(Para 31 (III)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Offence of civil character – Matrimonial disputes -- Compromise quashing of criminal proceedings – Inherent jurisdiction of High Court -- 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.

(Para 31 (IV))

E. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 -- Compromise quashing of criminal proceedings – Inherent jurisdiction of High Court – 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.

(Para 31 (V))

F. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 -- Indian Penal Code, 1860 (45 of 1860), Section 307 – Attempt of murder -- Compromise quashing of criminal proceedings :

--       Offences under Section 307 IPC 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 IPC 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 IPC 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 IPC. 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.

(Para 31 (VI))

G. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 -- Indian Penal Code, 1860 (45 of 1860), Section 307 – Attempt of murder -- Compromise quashing of criminal proceedings – Timing of compromise – Role of -- 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 IPC is committed or not.

(Para 31 (VII))

H. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 -- Indian Penal Code, 1860 (45 of 1860), Section 307 – Attempt of murder -- Compromise after conviction -- 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 u/s 307 IPC 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.

(Para 31 (VII))

Q.1 What is the stage at which power under Section 319 Cr.P.C. can be exercised?

Q.III Whether the word "evidence" used in Section 319(1) Cr.P.C. has been used in a comprehensive sense and includes the evidence collected during investigation or the word "evidence" is limited to the evidence recorded during trial?

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 193, 200, 201, 202, 319, 398 – Summoning u/s 193 Cr.P.C. -- Summoning u/s 319 Cr.P.C. -- Exercise of power -- Stage of -- Evidence – Meaning of – In Dharam Pal's case, AIR 2013 SC 3018, the Constitution Bench has already held that after committal, cognizance of an offence can be taken against a person not named as an accused but against whom materials are available from the papers filed by the police after completion of investigation -- Such cognizance can be taken u/s 193 Cr.P.C. and the Sessions Judge need not wait till 'evidence' u/s 319 Cr.P.C. becomes available for summoning an additional accused.

Section 319 Cr.P.C., significantly, uses two expressions that have to be taken note of i.e. (1) Inquiry (2) Trial.

--     As a trial commences after framing of charge, an inquiry can only be understood to be a pre-trial inquiry.

--     Inquiries u/ss 200, 201, 202 Cr.P.C.; and u/s 398 Cr.P.C. are species of the inquiry contemplated by Section 319 Cr.P.C.

--     Materials coming before the Court in course of such enquiries can be used for corroboration of the evidence recorded in the court after the trial commences, for the exercise of power u/s 319 Cr.P.C., and also to add an accused whose name has been shown in Column 2 of the chargesheet.

In view of the above position the word 'evidence' in Section 319 Cr.P.C. has to be broadly understood and not literally i.e. as evidence brought during a trial.

(Para 110)

Q.II Whether the word "evidence" used in Section 319(1) Cr.P.C. could only mean evidence tested by cross-examination or the court can exercise the power under the said provision even on the basis of the statement made in the examination-in-chief of the witness concerned?

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 319 -- Summoning u/s 319 Cr.P.C. -- Evidence – Cross-examination of – Requirement of -- Considering the fact that u/s 319 Cr.P.C. a person against whom material is disclosed is only summoned to face the trial and in such an event u/s 319(4) Cr.P.C. the proceeding against such person is to commence from the stage of taking of cognizance, the Court need not wait for the evidence against the accused proposed to be summoned to be tested by cross-examination.

(Para 110)

Q.IV What is the nature of the satisfaction required to invoke the power under Section 319 Cr.P.C. to arraign an accused? Whether the power under Section 319 (1) Cr.P.C. can be exercised only if the court is satisfied that the accused summoned will in all likelihood be convicted?

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 319 -- Summoning u/s 319 Cr.P.C. – Degree of satisfaction – Requirement of – Though only a prima facie case is to be established from the evidence led before the court not necessarily tested on the anvil of Cross-Examination, it requires much stronger evidence than mere probability of his complicity -- The test that has to be applied is one which is more than prima facie case as exercised at the time of framing of charge, but short of satisfaction to an extent that the evidence, if goes unrebutted, would lead to conviction -- In the absence of such satisfaction, the court should refrain from exercising power under Section 319 Cr.P.C. -- The degree of satisfaction that will be required for summoning a person u/s 319 Cr.P.C. would be the same as for framing a charge -- Fresh summoning of an accused will result in delay of the trial -- Therefore the degree of satisfaction for summoning the accused (original and subsequent) has to be different.

(Para 99, 110)

Q.V Does the power under Section 319 Cr.P.C. extend to persons not named in the FIR or named in the FIR but not chargesheeted or who have been discharged?

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 300, 319, 398 -- Summoning u/s 319 Cr.P.C. – Person not named in the FIR – Person discharged – Summoning of -- A person not named in the FIR or a person though named in the FIR but has not been chargesheeted or a person who has been discharged can be summoned u/s 319 Cr.P.C. provided from the evidence it appears that such person can be tried along with the accused already facing trial -- However, in so far as an accused who has been discharged is concerned the requirement of Sections 300 and 398 Cr.P.C. has to be complied with before he can be summoned afresh.

(Para 110)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 190, 200, 202, 204, 209 – Case triable by Session -- Additional accused – Summoning of -- Role of Magistrate -- Magistrate has a role to play while committing the case to the Court of Session upon taking cognizance on the police report submitted before him under Section 173(3) Cr.P.C.

--       In the event the Magistrate disagrees with the police report, he has two choices.

--       He may act on the basis of a protest petition that may be filed, or he may, while disagreeing with the police report, issue process and summon the accused.

Thereafter, if on being satisfied that a case had been made out to proceed against the persons named in column no.2 of the report, proceed to try the said persons or if he was satisfied that a case had been made out which was triable by the Court of Session, he may commit the case to the Court of Session to proceed further in the matter.

(Para 4-Question i and ii, 5, 22-24)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 190, 200, 202, 204, 209 – Police report u/s 173 Cr.P.C. -- Procedure for Magistrate – Having decided to issue summons, was the Magistrate required to follow the procedure of a complaint case and to take evidence before committing them to the Court of Session to stand trial or whether he was justified in issuing summons against them without following such procedure? – As to the Procedure to be followed by the Magistrate if he was satisfied that a prima facie case had been made out to go to trial despite the final report submitted by the police. In such an event, if the Magistrate decided to proceed against the persons accused, he would have to proceed on the basis of the police report itself and either inquire into the matter or commit it to the Court of Session if the same was found to be triable by the Session Court.

(Para 4-Question iii, 5, 25)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 173, 193, 209, 319 – Committal of case -- Additional accused – Summons u/s 193 or to wait till the stage u/s 319 Cr.P.C. -- Power of --

--       Session Judge was entitled to issue summons u/s 193 Cr.P.C. upon the case being committed to him by the learned Magistrate.

--       Provisions of Section 209 will, have to be understood as the learned Magistrate playing a passive role in committing the case to the Court of Session on finding from the police report that the case was triable by the Court of Session. Nor can there by any question of part cognizance being taken by the Magistrate and part cognizance being taken by the learned Session Judge.

--       Session Courts has jurisdiction on committal of a case to it, to take cognizance of the offences of the persons not named as offenders but whose complicity in the case would be evident from the materials available on record. Hence, even without recording evidence, upon committal u/s 209, the Session Judge may summon those persons shown in column 2 of the police report to stand trial along with those already named therein.

--       Decision in Kishun Singh’s case, (1993) 2 SCC 16  was the correct decision and the learned Session Judge, acting as a Court of original jurisdiction, could issue summons u/s 193 on the basis of the records transmitted to him as a result of the committal order passed by the learned Magistrate.

Held that the decision in the case of Kishun Singh vs. State of Bihar (1993) 2 SCC 16 and not the decision in Ranjit Singh Vs. State of Punjab (1998) 7 SCC 149 lays down the law correctly in respect of the powers of the Session Court after committal of the case to it by the learned Magistrate under Section 209 Cr.P.C.

(Para 4-Question iv to vi, 5, 23-31)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 –Non-compoundable offence – Compromise quashing -- Inherent powers of High Court -- Section 320 CrPC is not exercisable in relation to a case of non-compoundable offence -- Refusal to invoke power u/s 320 CrPC, however, does not debar the High Court from resorting to its inherent power u/s 482 CrPC and pass an appropriate order so as to secure the ends of justice.

(Para 10, 14,15)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Compromise in Non-compoundable offence -- Inherent power of High Court -- Stage of case -- Magnitude of inherent jurisdiction exercisable by the High Court u/s 482 Cr.P.C. with a view to prevent the abuse of law or to secure the ends of justice is wide enough to include its power to quash the proceedings in relation to not only the non-compoundable offences notwithstanding the bar u/s 320 CrPC but such a power, is exercisable at any stage save that there is no express bar.

(Para 17)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Indian Penal Code, 1860 (45 of 1860), Section 420,467,468 – Compromise after conviction – Inherent power of High Court -- Negation of the compromise would disharmonize the relationship and cause a permanent rift amongst the family members who are living together as a joint family – It would also lead to denial of complete justice which is the very essence of justice delivery system – Since there is no statutory embargo against invoking of power u/s 482 CrPC after conviction of an accused by the trial Court and during pendency of appeal against such conviction, it appears to be a fit case to invoke the inherent jurisdiction and strike down the proceedings subject to certain safeguards – Petition allowed, judgement and order of conviction set aside.

(Para 4, 10, 20-22)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Cheque bounce complaint -- Account closed – Payment stopped – Referred to drawer -- Signature do not match – Image is not found -- Expression “amount of money …………. is insufficient” appearing in Section 138 of the Act is a genus and dishonour for reasons such “as account closed”, “payment stopped”, “referred to the drawer” are only species of that genus – Dishonour on the ground that the “signatures do not match” or that the “image is not found”, which too implies that the specimen signatures do not match the signatures on the cheque would constitute a dishonour within the meaning of Section 138 of the Act.

-- Question whether or not there was a lawfully recoverable debt or liability for discharge whereof the cheque was issued would be a matter that the trial Court will examine having regard to the evidence adduced before it and keeping in view the statutory presumption that unless rebutted the cheque is presumed to have been issued for a valid consideration.

(Para 15)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Cheque bounce complaint – Payment Stopped -- Dishonour on the ground that the payment has been stopped, regardless whether such stoppage is with or without notice to the drawer, and regardless whether the stoppage of payment is on the ground that the amount lying in the account was not sufficient to meet the requirement of the cheque, would attract the provisions of Section 138.

(Para 16)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cheque bounce complaint -- Fraud – Allegations of fraud and the like are matters that cannot be investigated by a Court under Section 482 Cr.P.C. and shall have to be left to be determined at the trial after the evidence is adduced by the parties.

(Para 17)

A. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Inherent power of High Court – Nature of – quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest -- Ex debito justitiae -- Power is not to be resorted to if there is specific provision in the Code for the redress of the grievance of an aggrieved party -- It should be exercised very sparingly and it should not be exercised as against the express bar of law engrafted in any other provision of the Code -- In the very nature of its constitution, it is the judicial obligation of the High Court to undo a wrong in course of administration of justice or to prevent continuation of unnecessary judicial process -- This is founded on the legal maxim quando lex aliquid alicui concedit, conceditur et id sine qua res ipsa esse non potest -- Full import of which is whenever anything is authorised, and especially if, as a matter of duty, required to be done by law, it is found impossible to do that thing unless something else not authorised in express terms be also done, may also be done, then that something else will be supplied by necessary intendment -- Ex debito justitiae is inbuilt in such exercise; the whole idea is to do real, complete and substantial justice for which it exists -- Power possessed by the High Court u/s 482 of the Code is of wide amplitude but requires exercise with great caution and circumspection.

(Para 49-51)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 -- Compounding of offence -- Compromise quashing of FIR / Complaint – Inherent jurisdiction of High Court -- Power of the High Court in quashing a criminal proceeding or FIR or complaint in exercise of its inherent jurisdiction is distinct and different from the power given to a criminal court for compounding the offences under Section 320 of the Code -- Inherent power is of wide plenitude with no statutory limitation but it has to be exercised in accord with the guideline engrafted in such power viz;

(i)      to secure the ends of justice or

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

High Court must consider whether it would be unfair or contrary to the interest of justice to continue with the criminal proceeding or continuation of the criminal proceeding would tantamount to abuse of process of law despite settlement and compromise between the victim and wrongdoer and whether to secure the ends of justice, it is appropriate that criminal case is put to an end and if the answer to the above question(s) is in affirmative, the High Court shall be well within its jurisdiction to quash the criminal proceeding.

(Para 57)

C. Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Prevention of Corruption Act, 1988 (49 of 1988) -- Corruption matters -- Compromise quashing of FIR/ Complaint – Inherent jurisdiction of High Court -- Compromise between the victim and offender in relation to the offences under special statutes like Prevention of Corruption Act or the offences committed by public servants while working in that capacity etc; cannot provide for any basis for quashing criminal proceedings involving such offences.

(Para 57)

D. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 -- Indian Penal Code, 1860 (45 of 1860), Section 302, 376, 395, 406, 420, 498-A, 506 etc. -- Compromise quashing of FIR /Complaint – Inherent jurisdiction of High Court -- Power to quash the criminal proceeding or complaint or F.I.R may be exercised where the offender and victim have settled their dispute would depend on the facts and circumstances of each case and no category can be prescribed -- High Court must have due regard to the nature and gravity of the crime

--      Heinous and serious offences of mental depravity or offences like murder, rape, dacoity, etc. cannot be fittingly quashed even though the victim or victim’s family and the offender have settled the dispute. Such offences are not private in nature and have serious impact on society.

--      Offences arising from commercial, financial, mercantile, civil, partnership or such like transactions or the offences arising out of matrimony relating to dowry, etc. or the family disputes where the wrong is basically private or personal in nature and the parties have resolved their entire dispute. In this category of cases, High Court may quash criminal proceedings if in its view, because of the compromise between the offender and victim, the possibility of conviction is remote and bleak and continuation of criminal case would put accused to great oppression and prejudice and extreme injustice would be caused to him by not quashing the criminal case despite full and complete settlement and compromise with the victim.

(Para 57)

A. Indian Penal Code, 1860 (45 of 1860), Section 107, 306 – Abetment to suicide – mens rea -- Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing -- Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained -- In order to convict a person u/s 306 IPC there has to be a clear mens rea to commit the offence -- It also requires an active act or direct act which led the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.

(Para 45, 46)

B. Indian Penal Code, 1860 (45 of 1860), Section 107, 306 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Quashing of criminal proceedings -- Inherent jurisdiction of High Court -- Abetment to suicide – What to talk of instances of instigation, there are even no allegations against the appellants -- No proximate link between the incident of 14.1.2005 when the deceased was denied permission to use the Qualis car with the factum of suicide which had taken place on 18.1.2005 – Deceased was hyper-sensitive to ordinary petulance, discord and differences which happen in our day-to-day life – In a joint family, instances of this kind are not very uncommon -- Different people behave differently in the same situation -- High Court was not justified in rejecting the petition filed by the appellants u/s 482 of the Cr.P.C. for quashing the charges u/s 306 I.P.C. against them -- High Court ought to have quashed the proceedings so that the appellants who were not remotely connected with the offence u/s 306 I.P.C. should not have been compelled to face the rigmaroles of a criminal trial -- As a result, the charges u/s 306 I.P.C. against the appellants quashed.

(Para 47-72)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Indian Penal Code, 1860 (45 of 1860), Section 420 -- Constitution of India, Article 20(1) -- Code of Criminal Procedure, 1973 (2 of 1974), Section 300(1) -- Double jeopardy – Conviction u/s 138 of NI Act – Trial and punishment under Section 420 IPC – Permissibility of – Section 300(1) of Cr.P.C. is wider than Article 20(2) of the Constitution -- While, Article 20(2) of the Constitution only states that 'no one can be prosecuted and punished for the same offence more than once' -- Section 300(1) of Cr.P.C. states that no one can be tried and convicted for the same offence or even for a different offence but on the same facts – Held in the case although the offences are different but the facts are the same -- Hence, Section 300(1) of Cr.P.C. applies -- Consequently, the prosecution u/s 420, IPC was barred by Section 300(1) of Cr.P.C.

(Para 7, 8)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 145 – Code of Criminal Procedure, 1973 (2 of 1974), Section 200 -- Cheque bounce complaint – Cognizance by Magistrate – Evidence of complainant – Affidavit of complainant in evidence -- For the purpose of issuing process u/s 200 of the Cr. P.C., it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint u/s 138 of the NI Act, 1881 and the Magistrate is not obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witnesses upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881.

-- It is only if and where the Magistrate, after considering the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness is required, that the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881.

(Para 59)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 145 – Code of Criminal Procedure, 1973 (2 of 1974), Section 200 -- Cheque bounce complaint – Cognizance by Magistrate – Evidence of complainant -- Affidavit of complainant in evidence -- Nothing wrong with filing the affidavit in support of the complaint in a format indicating all the essential facts satisfying the ingredients of Section 138 of the NI Act, 1881 for the purpose of enabling the Magistrate to decide whether or not to issue process on the complaint u/s 138 of the NI Act, 1881.

(Para 59)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 374(3), 378(4), 397, 401 – Constitution of India, Article 136 -- Cheque bounce case – Remedies available -- Offence u/s 138 triable by a Judicial Magistrate First Class (JMFC) -- After trial, the progression of further legal proceedings would depend on whether there has been a conviction or an acquittal.

-- In the case of conviction, an appeal would lie to the Court of Sessions under Section 374(3)(a) of the CrPC; thereafter a Revision to the High Court under Section 397/401 of the CrPC and finally a petition before the Supreme Court, seeking special leave to appeal under 136 of the Constitution of India. Thus, in case of conviction there will be four levels of litigation.

-- In the case of acquittal by the JMFC, the complainant could appeal to the High Court under Section 378(4) of the CrPC, and thereafter for special leave to appeal to the Supreme Court under Article 136. In such an instance, therefore, there will be three levels of proceedings.

(Para 14)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 143, 147 -- Cheque bounce case – Framing of Guidelines for compounding of offence :

THE GUIDELINES

(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.

Competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance.

(Para 15, 17)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Cheque bounce case – Multiple complaints – Controlling of -- It should be mandatory for the complainant to disclose that no other complaint has been filed in any other court in respect of the same transaction -- Such a disclosure should be made on a sworn affidavit which should accompany the complaint filed u/s 200 of the CrPC -- If it is found that such multiple complaints have been filed, orders for transfer of the complaint to the first court should be given, generally speaking, by the High Court after imposing heavy costs on the complainant for resorting to such a practice. These directions should be given effect prospectively.

(Para 16)

D. Constitution of India, Article 142 -- Negotiable Instruments Act, 1881 (26 of 1881), Section 138, Section 147 – Code of Criminal Procedure, 1973 (2 of 1974), Section 320 -- Guidelines could be seen as an act of judicial law-making and therefore an intrusion into the legislative domain – It must be kept in mind that Section 147 of the Act does not carry any guidance on how to proceed with the compounding of offences under the Act -- Scheme contemplated u/s 320 of the CrPC cannot be followed in the strict sense -- In view of the legislative vacuum, no hurdle to the endorsement of some suggestions which have been designed to discourage litigants from unduly delaying the composition of the offence in cases involving Section 138 of the Act -- Competent Court can of course reduce the costs with regard to the specific facts and circumstances of a case, while recording reasons in writing for such variance.

(Para 17)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 143, 145 -- Affidavit of complainant in evidence – Absence of accused -- Section 145 allows for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused -- Accused, however, is fully protected, as under sub-section (2) of section 145 he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination.

(Para 16)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 143, 144, 145, 146, 147 – Object of Amendment Act, 2002 -- Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial.

(Para 17)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 143, 145, 147 -- Indian Evidence Act, 1872 (1 of 1872), Section 137 – Affidavit of complainant in evidence – Examination-in-chief – Requirement of -- Whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit ? – Nothing in section 145(2) to suggest that -- Deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit -- Prosecution may also have to summon a witness whose evidence is given on affidavit in case objection is raised by the defence regarding the validity and/or sufficiency of proof of some document(s) submitted along with the affidavit.

(Para 21, 22)

D. Negotiable Instruments Act, 1881 (26 of 1881). Section 143, 145(1) -- Affidavit of accused in evidence – Permissibility of -- High Court held that subject to the provisions of sections 315 and 316 of the Code of Criminal Procedure the accused can also give his evidence on affidavit – Held, High Court overreached itself and took a course that amounts to taking over the legislative functions.

-- On a bare reading of section 143 it is clear that the legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word ‘accused’ with the word ‘complainant’ in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission.

High Court was in error in taking the view, that on a request made by the accused the magistrate may allow him to tender his evidence on affidavit.

(Para 30-32)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 142 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Second notice – Cause of action – Complaint u/s 138 of NI Act -- Maintainability of –Respondent issued notices, although, the notice was duly served, the Respondent did not take any steps to file the complaint within the period prescribed – Held, a cheque may be presented several times within the period of its validity, the cause of action for a complaint u/s 138 of the Act arises but once, with the issuance of notice after dishonour of the cheque and the receipt thereof by the drawer – Ld. Magistrate erred in taking cognizance on the complaints filed on the basis of the second notices, High Court also wrongly affirmed the same – Appeal allowed, impugned orders set aside.

(Para 4, 15-18)

A. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42, 43 – NDPS case -- Power of entry, search, seizure and arrest:

-- Section 42 requires recording of reasons for belief and for taking down of information received in writing with regard to the commission of an offence before conducting search and seizure.

-- Section 43 does not contain any such provision and as such while acting u/s 43 of the Act, the empowered officer has the power of seizure of the article etc. and arrest of a person who is found to be in possession of any narcotic drug or psychotropic substance in a public place where such possession appears to him to be unlawful.

(Para 12)

B. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42(1)(2) -- NDPS case -- Power of entry, search, seizure and arrest – Statutory requirement of writing down and conveying information to superior officer -- Provisions should be taken as discretionary measure:

-- If the statutory provisions u/s 41(2) and 42(2) of the Act of writing down the information is interpreted as a mandatory provision, it will disable the haste of an emergency situation and may turn out to be in vain with regard to the criminal search and seizure -- These provisions should not be misused by the wrongdoers/offenders as a major ground for acquittal -- Consequently, these provisions should be taken as discretionary measure which should check the misuse of the Act rather than providing an escape to the hardened drug-peddlers.

(Para 16)

C. Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985), Section 42(1)(2) -- Scope and applicability of Section 42 of NDPS Act -- Power of entry, search, seizure and arrest – Statutory requirement of writing down and conveying information to superior officer – Abdul Rashid, (2000) 2 SCC 513 did not require literal compliance with the requirements of Sections 42(1) and 42(2) nor did Sajan Abraham (2001) 6 SCC 692 hold that the requirements of Section 42(1) and 42(2) need not be fulfilled at all. The effect of the two decisions was as follows:

(a)     The officer on receiving the information (of the nature referred to in Sub-section (1) of section 42) from any person had to record it in writing in the concerned Register and forthwith send a copy to his immediate official superior, before proceeding to take action in terms of clauses (a) to (d) of section 42(1).

(b)    But if the information was received when the officer was not in the police station, but while he was on the move either on patrol duty or otherwise, either by mobile phone, or other means, and the information calls for immediate action and any delay would have resulted in the goods or evidence being removed or destroyed, it would not be feasible or practical to take down in writing the information given to him, in such a situation, he could take action as per clauses (a) to (d) of section 42(1) and thereafter, as soon as it is practical, record the information in writing and forthwith inform the same to the official superior.

(c)     In other words, the compliance with the requirements of Sections 42 (1) and 42(2) in regard to writing down the information received and sending a copy thereof to the superior officer, should normally precede the entry, search and seizure by the officer. But in special circumstances involving emergent situations, the recording of the information in writing and sending a copy thereof to the official superior may get postponed by a reasonable period, that is after the search, entry and seizure. The question is one of urgency and expediency.

(d)    While total non-compliance of requirements of sub-sections (1) and (2) of section 42 is impermissible, delayed compliance with satisfactory explanation about the delay will be acceptable compliance of section 42. To illustrate, if any delay may result in the accused escaping or the goods or evidence being destroyed or removed, not recording in writing the information received, before initiating action, or non-sending a copy of such information to the official superior forthwith, may not be treated as violation of section 42. But if the information was received when the police officer was in the police station with sufficient time to take action, and if the police officer fails to record in writing the information received, or fails to send a copy thereof, to the official superior, then it will be a suspicious circumstance being a clear violation of section 42 of the Act. Similarly, where the police officer does not record the information at all, and does not inform the official superior at all, then also it will be a clear violation of section 42 of the Act. Whether there is adequate or substantial compliance with section 42 or not is a question of fact to be decided in each case. The above position got strengthened with the amendment to section 42 by Act 9 of 2001.

Reference answered in the manner aforesaid.

(Para 17)

A. Indian Evidence Act, 1872 (1 of 1872), Section 4 -- May presume – Shall Presume – Section 4 of Evidence Act inter-alia defines the words ‘may presume’ and ‘shall presume as follows:-

“(a) ‘may presume’ – Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved or may call for proof of it.

(b) ‘shall presume’ – Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.”

In the former case the Court has an option to raise the presumption or not, but in the latter case, the Court must necessarily raise the presumption. If in a case the Court has an option to raise the presumption and raises the presumption, the distinction between the two categories of presumptions ceases and the fact is presumed, unless and until it is disproved.

(Para 9)

B. Negotiable Instruments Act (26 of 1881), Section 118, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 3 – Cheque against consideration -- Legally enforceable debt or liability – Presumption -- Rebuttal – In a trial u/s 138 of the Act a presumption will have to be made that every negotiable instrument was made or drawn for consideration and that it was executed for discharge of debt or liability once the execution of negotiable instrument is either proved or admitted -- As soon as the complainant discharges the burden to prove that the instrument, say a note, was executed by the accused, the rules of presumptions under Sections 118 and 139 of the Act help him shift the burden on the accused -- Presumptions will live, exist and survive and shall end only when the contrary is proved by the accused, that is, the cheque was not issued for consideration and in discharge of any debt or liability -- A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.

(Para 10)

C. Negotiable Instruments Act (26 of 1881), Section 118, 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 4 – Cheque against consideration -- Legally enforceable debt or liability – Presumption -- Rebuttal – Phrase “until the contrary is proved” read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it at once clear that presumptions to be raised under both the provisions are rebuttable.

(Para 11)

D. Negotiable Instruments Act (26 of 1881), Section 118, 138, 139 – Indian Evidence Act, 1872 (1 of 1872), Section 4, 114 – Rebuttal of presumption – Accused in a trial u/s 138 of the Act has two options – He can either show that consideration and debt did not exist or that under the particular circumstances of the case the non-existence of consideration and debt is so probable that a prudent man ought to suppose that no consideration and debt existed – To rebut the statutory presumptions an accused is not expected to prove his defence beyond reasonable doubt as is expected of the complainant in a criminal trial – Court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated – At the same time, it is clear that bare denial of the passing of the consideration and existence of debt, apparently would not serve the purpose of the accused – Something which is probable has to be brought on record for getting the burden of proof shifted to the complainant.

-- To disprove the presumptions, the accused should bring on record such facts and circumstances, upon consideration of which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.

-- Accused may also rely upon circumstantial evidence and if the circumstances so relied upon are compelling, the burden may likewise shift again on to the complainant – Accused may also rely upon presumptions of fact, for instance, those mentioned in Section 114 of the Evidence Act to rebut the presumptions arising under Sections 118 and 139 of the Act.

-- Accused has also an option to prove the non-existence of consideration and debt or liability either by letting in evidence or in some clear and exceptional cases, from the case set out by the complainant, that is, the averments in the complaint, the case set out in the statutory notice and evidence adduced by the complainant during the trial.

Once such rebuttal evidence is adduced and accepted by the court, having regard to all the circumstances of the case and the preponderance of probabilities, the evidential burden shifts back to the complainant and, thereafter, the presumptions under Sections 118 and 139 of the Act will not again come to the complainant’s rescue.

(Para 11)

E. Negotiable Instruments Act (26 of 1881), Section 138 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 378(4), 386 -- Acquittal by trial court – Conviction in appeal by High Court – Sentence to accused -- High Court, after convicting the appellant u/s 138 of the Act, remitted the matter to the learned Magistrate for passing appropriate order of sentence – Held, this course, is unknown to law -- Powers of the Appellate Court, in an appeal from an order of acquittal, are enumerated in Section 386(a) of the Code of Criminal Procedure, 1973 -- Powers do not contemplate that an Appellate Court, after recording conviction, can remit the matter to the trial court for passing appropriate order of sentence -- Judicial function of imposing appropriate sentence can be performed only by the Appellate Court when it reverses the order of acquittal and not by any other court -- Procedure adopted by the High Court not approved.

(Para 13)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Cheque bounce complaint -- Cause of action – Third demand notice -- First notice having not been served and the second notice having been withdrawn in terms of the reply of appellants/ accused, the complainant cannot be said to have committed any illegality in presenting the cheque for the third time and issuing the third notice upon the defaulter -- Issuance of a valid notice calling upon the drawer of the cheque to pay the amount in question and the appellants' failure to pay to the complainant the amount in question within a period of 15 days from the date of receipt of a copy of the said notice upon them, a cause of action arose for filing a complaint petition – Held, cause of action for filing a complaint arose only once and not more than once.

(Para 33)

Indian Penal Code, 1860 (45 of 1860), Section 379,406,409,418,506,34 –  Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Business related disputes – Compromise quashing of FIR – Dispute arose out of extensive business dealings between the parties -- Absolutely no public policy involved in the nature of the allegations made – Held, where the question involved is of a purely personal nature, the Court should ordinarily accept the terms of the compromise even in criminal proceedings – Keeping the matter alive with no possibility of a result in favour of the prosecution is a luxury which the Courts, grossly overburdened as they are, cannot afford and that the time so saved can be utilized in deciding more effective and meaningful litigation – FIR u/s 379,406,409,418,506/34 IPC and all proceedings therewith quashed.

(Para 2-5)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- Demand Notice for payment – Mandatory in nature -- Object of – Object of the proviso is to avoid unnecessary hardship to an honest drawer -- Giving a notice to the drawer before filing complaint u/s 138 of the Act is a mandatory requirement.

(Para 6)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Demand Notice for payment – Serviced of notice -- Presumption of – Cause of action -- Where the payee dispatches the notice by registered post with correct address of the drawer of the cheque, the principle incorporated in Section 27 of the G.C. Act would be attracted -- Requirement of Clause (b) of proviso to Section 138 of the Act stands complied with and cause of action to file a complaint arises on the expiry of the period prescribed in Clause (c) of the said proviso for payment by the drawer of the cheque -- Nevertheless, it would be without prejudice to the right of the drawer to show that he had no knowledge that the notice was brought to his address.

(Para 10)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 – Demand Notice for payment – Service of notice – Presumption of -- Pleadings – Requirement of -- Section 27 gives rise to a presumption that service of notice has been effected when it is sent to the correct address by registered post – It is not necessary to aver in the complaint u/s 138 of the Act that service of notice was evaded by the accused or that the accused had a role to play in the return of the notice unserved -- Complaint must contain basic facts regarding the mode and manner of the issuance of notice to the drawer of the cheque.

(Para 14, 15)

D. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Demand Notice for payment – Service of notice – Presumption of – Rebuttal of -- At the time of taking cognizance of the complaint u/s 138 of the Act, the Court is required to be prima facie satisfied that a case under the said Section is made out and the mandatory statutory procedural requirements have been complied with -- It is then for the drawer to rebut the presumption about the service of notice and show that he had no knowledge that the notice was brought to his address or that the address mentioned on the cover was incorrect or that the letter was never tendered or that the report of the postman was incorrect.

(Para 15)

E. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 -- General Clauses Act, 1897 (10 of 1897), Section 27 -- Indian Evidence Act, 1872 (1 of 1872), Section 114 -- Demand Notice for payment – Service of notice – Presumption of – Rebuttal of – Any drawer who claims that he did not receive the notice sent by post, can, within 15 days of receipt of summons from the court in respect of the complaint u/s 138 of the Act, make payment of the cheque amount and submit to the Court that he had made payment within 15 days of receipt of summons (by receiving a copy of complaint with the summons) and, therefore, the complaint is liable to be rejected -- A person who does not pay within 15 days of receipt of the summons from the Court along with the copy of the complaint u/s 138 of the Act, cannot obviously contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the G.C. Act and Section 114 of the Evidence Act.

(Para 17)

A. Indian Penal Code, 1860 (45 of 1860), Section 304-A – Negligence – Tort – Medical Negligence -- Criminal liability -- Negligence is the breach of a duty caused by omission to do something which a reasonable man guided by those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a prudent and reasonable man would not do – Negligence becomes actionable on account of injury resulting from the act or omission amounting to negligence attributable to the person sued – Essential components of negligence are three: ’duty’, ’breach’ and ’resulting damage’.

--       Negligence in the context of medical profession necessarily calls for a treatment with a difference. To infer rashness or negligence on the part of a professional, in particular a doctor, additional considerations apply. A case of occupational negligence is different from one of professional negligence.

--       A simple lack of care, an error of judgment or an accident, is not proof of negligence on the part of a medical professional.

--       So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment was also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed.

--       When it comes to the failure of taking precautions what has to be seen is whether those precautions were taken which the ordinary experience of men has found to be sufficient; a failure to use special or extraordinary precautions which might have prevented the particular happening cannot be the standard for judging the alleged negligence.

--       Standard of care, while assessing the practice as adopted, is judged in the light of knowledge available at the time of the incident, and not at the date of trial.

--       When the charge of negligence arises out of failure to use some particular equipment, the charge would fail if the equipment was not generally available at that particular time (that is, the time of the incident) at which it is suggested it should have been used.

(Para 51 (1)(2))

B. Indian Penal Code, 1860 (45 of 1860), Section 304-A – Medical negligence – Tort – Criminal liability -- A professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or, he did not exercise, with reasonable competence in the given case, the skill which he did possess -- Standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession -- It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices -- A highly skilled professional may be possessed of better qualities, but that cannot be made the basis or the yardstick for judging the performance of the professional proceeded against on indictment of negligence -- Test for determining medical negligence as laid down in Bolam’s case [1957] 1 W.L.R. 582, 586 holds good in its applicability in India.

(Para 51 (3)(4))

C. Indian Penal Code, 1860 (45 of 1860), Section 304-A – Medical negligence – Tort – Criminal liability – Mens-rea -- Res ipsa loquitur  -- Jurisprudential concept of negligence differs in civil and criminal law -- What may be negligence in civil law may not necessarily be negligence in criminal law -- For negligence to amount to an offence, the element of mens rea must be shown to exist -- For an act to amount to criminal negligence, the degree of negligence should be much higher i.e. gross or of a very high degree -- Negligence which is neither gross nor of a higher degree may provide a ground for action in civil law but cannot form the basis for prosecution.

--       The word ’gross’ has not been used in Section 304A of IPC, yet it is settled that in criminal law negligence or recklessness, to be so held, must be of such a high degree as to be ’gross’. The expression ’rash or negligent act’ as occurring in Section 304A of the IPC has to be read as qualified by the word ’grossly’.

--       To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury which resulted was most likely imminent.

--       Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law specially in cases of torts and helps in determining the onus of proof in actions relating to negligence. It cannot be pressed in service for determining per se the liability for negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited application in trial on a charge of criminal negligence.

(Para 51 (5-8))

D. Indian Penal Code, 1860 (45 of 1860), Section 304-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 154,156,190 -- Medical negligence – Tort – Criminal liability -- Guidelines - re: prosecuting medical professionals -- Statutory Rules or Executive Instructions incorporating certain guidelines need to be framed and issued by the Government of India and/or the State Governments in consultation with the Medical Council of India -- So long as it is not done, Court propose to lay down certain Guidelines for the future which should govern the prosecution of doctors for offences of which criminal rashness or criminal negligence is an ingredient :

--       A private complaint may not be entertained unless the complainant has produced prima facie evidence before the Court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor.

--       Investigating officer should, before proceeding against the doctor accused of rash or negligent act or omission, obtain an independent and competent medical opinion preferably from a doctor in government service qualified in that branch of medical practice who can normally be expected to give an impartial and unbiased opinion applying Bolam’s test to the facts collected in the investigation.

--       A doctor accused of rashness or negligence, may not be arrested in a routine manner (simply because a charge has been levelled against him). Unless his arrest is necessary for furthering the investigation or for collecting evidence or unless the investigation officer feels satisfied that the doctor proceeded against would not make himself available to face the prosecution unless arrested, the arrest may be withheld.

(Para 55)

E. Indian Penal Code, 1860 (45 of 1860), Section 304-A, 34 – Medical negligence – Tort – Criminal liability -- Criminal rashness or negligence -- It is not the case of the complainant that the accused-appellant was not a doctor qualified to treat the patient whom he agreed to treat -- It is a case of non-availability of oxygen cylinder either because of the hospital having failed to keep available a gas cylinder or because of the gas cylinder being found empty -- Then, probably the hospital may be liable in civil law but the accused appellant cannot be proceeded against under Section 304A IPC on the parameters of Bolam’s test -- Prosecution of the accused appellant under Section 304A/34 IPC is quashed.

(Para 56, 57)

Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 142 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 204, 239, 252, 482 -- Cheque bounce case – Cognizance by Magistrate -- Summoning of acused – Interlocutory order – Discharge/ Recalling application – Remedy of -- Once the plea of the accused is recorded u/s 252 of the Code the procedure contemplated under Chapter XX (Cr.P.C.) has to be followed which is to take the trial to its logical conclusion -- Only remedy available to an aggrieved accused to challenge an order in an interlocutory stage is the extraordinary remedy u/s 482 of the Code and not by way of an application to recall the summons or to seek discharge which is not contemplated in the trial of a summons case.

(Para 16, 17)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 5 -- Bill of exchange – Bill of exchange is a negotiable instrument in writing containing an instruction to a third party to pay a stated sum of money at a designated future date or on demand.

(Para 17)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 5, 6 -- Bill of exchange – Cheque -- A ‘cheque is a bill of exchange drawn on a bank by the holder of an account payable on demand -- A ‘post-dated cheque is not payable till the date which is shown thereon arrives and will become cheque on the said date and prior to that date the same remains bill of exchange.

(Para 17)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 6, 138 – Cheque bounce complaint – Post dated cheque – For prosecuting a person for an offence u/s 138 of the Act, it is inevitable that the cheque is presented to the banker within a period of six months from the date on which it is drawn or within the period of its validity whichever is earlier – Post-dated cheque becomes a cheque within the meaning of Section 138 of the Act on the date which is written thereon -- Six months period shall be reckoned from the date mentioned on the face of the cheque and not any earlier date on which the cheque was made over by the drawer to the drawee.

(Para 18)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Cheque by Company -- Demand notice to Director of Company – Validity of – Demand notice to Director of Company, who signed the cheque -- High Court committed error in recording a finding that there was no notice to the drawer of the cheque, as required u/s 138 of the NI Act – Held, Impugned order of the High Court is liable to be quashed.

(Para 1, 7)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Cheque by Company -- Offence by Company – Deposit of money in court – Quashing of proceedings – Permissibly of -- Once the offence is committed, any payment made subsequent thereto will not absolve the accused of the liability of criminal offence, though in the matter of awarding of sentence, it may have some effect on the Courts trying the offence -- But by no stretch of imagination, a criminal proceeding could be quashed on account of deposit of money in the Court.

(Para 8)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 142 – Cause of action -- Pre-mature filing of complaint – Cognizance by Magistrate -- "Taking cognizance of an offence" by the Court has to be distinguished from the filing of the complaint by the complainant -- Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the offender in respect of the offence regarding which the complaint is filed – Mere presentation of the complaint in the Court cannot be held to mean that its cognizance had been taken by the Magistrate -- If the complaint is found to be pre-mature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed.

(Para 8-10)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 142 – Presentation of complaint – Cognizance by Magistrate -- Complaint was returned to the complainant/ appellant on the ground that the verification was not signed by the counsel, could not be termed to be an action of the Magistrate taking cognizance within the meaning of Section 142 of the Act.

(Para 11)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Sick Industrial Companies (Special Provisions) Act (1 of 1986), Section 22 – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Constitution of India, Article 227 -- Dishonour of Cheque -- Prosecution of the Company/ Directors – SICA proceedings -- Maintainability of complaint u/s 138 of NI Act -- Section only creates an embargo against disposal of assets of the company for recovery of its debts -- Purpose of such an embargo is to preserve the assets of the company from being attached or sold for realisation of dues of the creditors -- Section does not bar payment of money by the company or its directors to other persons for satisfaction of their legally enforceable dues -- Section 22 SICA does not create any legal impediment for instituting and proceeding with a criminal case on the allegations of an offence u/s 138 of the NI Act against a company or its Directors.

(Para 18)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Sick Industrial Companies (Special Provisions) Act (1 of 1986), Section 22-A – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 -- Constitution of India, Article 227 -- Dishonour of Cheque -- Prosecution of the Company/ Directors – Company declared Sick -- Maintainability of complaint u/s 138 of NI Act -- In a case in which the BIFR has submitted its report declaring a company as ‘sick’ and has also issued a direction u/s 22-A restraining the company or its directors not to dispose of any of its assets except with consent of the Board then the contention raised that a criminal case for the alleged offence u/s 138 NI Act cannot be instituted during the period in which the restraint order passed by the BIFR remains operative cannot be rejected outright -- Whether the contention can be accepted or not will depend on the facts and circumstances of the case -- For instance, before the date on which the cheque was drawn or before expiry of the statutory period of 15 days after notice, a restraint order of the BIFR u/s 22-A was passed against the company then it cannot be said that the offence u/s 138 NI Act was completed -- In such a case it may reasonably be said that the dishonoring of the cheque by the bank and failure to make payment of the amount by the company and/or its Directors is for reasons beyond the control of the accused -- In such circumstances it would be unjust and unfair and against the intent and purpose of the statute to hold that the Directors should be compelled to face trial in a criminal case.

(Para 19, 20)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Cheque bounce case -- Demand notice for payment – Additional claim in demand notice -- Effect of – If in a notice any other sum is indicated in addition to the cheque amount the notice cannot be faulted.

(Para 10)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 139 – Cheque bounce case – Presumption -- Additional claim in demand notice -- Presumption u/s 139 of NI Act would arise only in respect of the cheque amount -- Regarding other claims, a civil suit would be necessary.

(Para 10-13)