A. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Constitution of India, Article 15(3) -- Marital rape with girl child -- Whether sexual intercourse between a man and his wife being a girl between 15 and 18 years of age is rape? – Held, Sexual intercourse with a girl below 18 years of age is rape regardless of whether she is married or not -- Exception carved out in the IPC creates an unnecessary and artificial distinction between a married girl child and an unmarried girl child and has no rational nexus with any unclear objective sought to be achieved -- Artificial distinction is arbitrary and discriminatory and is definitely not in the best interest of the girl child -- Artificial distinction is contrary to the philosophy and ethos of Article 15(3) of the Constitution as well as contrary to Article 21 of the Constitution and our commitments in international conventions -- Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

 (Para 1, 105)

B. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 – Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Juvenile Justice (Care and Protection of Children) Act, 2015 (2 of 2016), Section 2(12, 2(14) -- Prohibition of Child Marriage Act, 2006 (6 of 2007), Section 3 -- Marital rape/ Sexual inter-course with wife aged 15 to 18 years – Harmonious and purposive interpretation -- Entire issue of the interpretation of the JJ Act, the POCSO Act, the PCMA and Exception 2 to Section 375 of the IPC can be looked at from the perspective of purposive and harmonious construction of statutes relating to the same subject matter – There seems to be no reason to arbitrarily discriminate against a girl child who is married between 15 and 18 years of age -- Exception 2 to Section 375 of the IPC is to be read in a purposive manner to make it in consonance with the POCSO Act, the spirit of other pro-child legislations and the human rights of a married girl child -- To harmonize the system of laws relating to children and require Exception 2 to Section 375 of the IPC to now be meaningfully read as: “Sexual intercourse or sexual acts by a man with his own wife, the wife not being under eighteen years of age, is not rape.”

(Para 99, 103, 105,108)

C. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 –Protection of Children from Sexual Offences Act, 2012 (32 of 2012), Section 5, 6 -- Constitution of India, Article 14, 15, 21 -- Sexual inter-course with wife aged 15 to 18 years – Marital rape with girl child below 18 years -- Exception 2 to Section 375 IPC in so far as it relates to a girl child below 18 years is liable to be struck down on the following grounds:–

(i)      it is arbitrary, capricious, whimsical and violative of the rights of the girl child and not fair, just and reasonable and, therefore, violative of Article 14, 15 and 21 of the Constitution of India;

(ii)     it is discriminatory and violative of Article 14 of the Constitution of India and;

(iii)    it is inconsistent with the provisions of POCSO, which must prevail.

Therefore, Exception 2 to Section 375 IPC is read down as follows:

“Sexual intercourse or sexual acts by a man with his own wife, the wife not being 18 years, is not rape”.

This judgment will have prospective effect.

(Para 195)

D. Indian Penal Code, 1860 (45 of 1860), Section 375, Exception 2 -- Code of Criminal Procedure, 1973 (2 of 1974), Section 198(6) -- Sexual inter-course with wife aged 15 to 18 years – Martial rape with wives below 18 years – Cognizance of -- Section 198(6) of the Code will apply to cases of rape of “wives” below 18 years, and cognizance can be taken only in accordance with the provisions of Section 198(6) of the Code.

(Para 196)

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)

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)

Indian Penal Code, 1860 (45 of 1860), Section 498-A – Dowry cases – Compounding of -- Remedial steps: i) Uncalled for implication of husband and his relatives and arrest. ii) Continuation of proceedings in spite of settlement between the parties since the offence is non-compoundable and uncalled for hardship to parties on that account

To remedy the situation, it is held:

Involvement of civil society in the aid of administration of justice can be one of the steps, apart from the investigating officers and the concerned trial courts being sensitized. It is also necessary to facilitate closure of proceedings where a genuine settlement has been reached instead of parties being required to move High Court only for that purpose.

Following directions issued:-

i)    (a)     In every district one or more Family Welfare Committees be constituted by the District Legal Services Authorities preferably comprising of three members. The constitution and working of such committees may be reviewed from time to time and at least once in a year by the District and Sessions Judge of the district who is also the Chairman of the District Legal Services Authority.

(b)   The Committees may be constituted out of para legal volunteers/social workers/retired persons/wives of working officers/other citizens who may be found suitable and willing.

(c)    The Committee members will not be called as witnesses.

(d)   Every complaint under Section 498A received by the police or the Magistrate be referred to and looked into by such committee. Such committee may have interaction with the parties personally or by means of telephone or any other mode of communication including electronic communication.

(e)    Report of such committee be given to the Authority by whom the complaint is referred to it latest within one month from the date of receipt of complaint.

(f)    The committee may give its brief report about the factual aspects and its opinion in the matter.

(g)   Till report of the committee is received, no arrest should normally be effected.

(h)   The report may be then considered by the Investigating Officer or the Magistrate on its own merit.

(i)    Members of the committee may be given such basic minimum training as may be considered necessary by the Legal Services Authority from time to time.

(j)    The Members of the committee may be given such honorarium as may be considered viable.

(k)    It will be open to the District and Sessions Judge to utilize the cost fund wherever considered necessary and proper.

ii)    Complaints under Section 498A and other connected offences may be investigated only by a designated Investigating Officer of the area. Such designations may be made within one month from today. Such designated officer may be required to undergo training for such duration (not less than one week) as may be considered appropriate. The training may be completed within four months from today;

iii)   In cases where a settlement is reached, it will be open to the District and Sessions Judge or any other senior Judicial Officer nominated by him in the district to dispose of the proceedings including closing of the criminal case if dispute primarily relates to matrimonial discord;

iv)    If a bail application is filed with at least one clear day’s notice to the Public Prosecutor/complainant, the same may be decided as far as possible on the same day. Recovery of disputed dowry items may not by itself be a ground for denial of bail if maintenance or other rights of wife/minor children can otherwise be protected. Needless to say that in dealing with bail matters, individual roles, prima facie truth of the allegations, requirement of further arrest/ custody and interest of justice must be carefully weighed;

v)     In respect of persons ordinarily residing out of India impounding of passports or issuance of Red Corner Notice should not be a routine;

vi)    It will be open to the District Judge or a designated senior judicial officer nominated by the District Judge to club all connected cases between the parties arising out of matrimonial disputes so that a holistic view is taken by the Court to whom all such cases are entrusted; and

vii)   Personal appearance of all family members and particularly outstation members may not be required and the trial court ought to grant exemption from personal appearance or permit appearance by video conferencing without adversely affecting progress of the trial.

viii)  These directions will not apply to the offences involving tangible physical injuries or death.

After seeing the working of the above arrangement for six months but latest by March 31, 2018, National Legal Services Authority may give a report about need for any change in above directions or for any further directions. The matter may be listed for consideration by the Court in April, 2018.

(Para 15-20)

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)

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)

Indian Penal Code, 1860 (45 of 1860) Section 323 -- Conviction u/s 323 IPC -- Moral traptitude – Dismissal from service -- Appellant died, appeal abated – Co-accused acquitted u/s 304 Part II and convicted under section 323 IPC – Role of co-accused was similar – Division Bench of Punjab and Haryana High court held that the conviction u/s 323 not to constitute offence one involving moral turpitude in terms of the test laid down in instructions dated 26.03.1975 – LR’s of deceased shall be entitled to all the benefits in terms of the judgment under appeal except the payment of back wages – All the other consequential benefits be computed and released within two months from the date of this Judgment.

(Para 4-12)

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)

Indian Penal Code, 1860 (45 of 1860), Section 498-A, 304-B -- Dowry death – Acquittal of accused -- Rs.20,000/- for the purchase of agricultural land was demanded by father-in-law when husband was in Dubai – Husband is stated to have returned to India from Dubai eight to ten months, after the above demand -- A female child was born about a year after the return of husband to India -- After the birth of the female child, deceased-wife had remained in her maternal house, for about four to five months -- Even if the above oral allegation is accepted as correct, it was a demand made about two years before the occurrence -- Same was too remote to the occurrence, and therefore, would not satisfy the requirement of “soon before her death” contemplated under Section 304B(1) of the Indian Penal Code -- Demand of sewing-machine was clarified by mother of girl during her cross-examination that her daughter knew tailoring and the sewing-machine was given to her for tailoring clothes -- This was really a gift and therefore, cannot be considered as a part of the demand made by inlaws husband for himself or for his family members -- This allegation is inconsequential -- High Court was, therefore, fully justified in acquitting the accused.

(Para 16-21)

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))

Negotiable Instruments Act, 1881 (26 of 1881), Section 9, 85(2), 138 – Self cheque -- Bearer cheque – Maintainability of complaint u/s 138 of NI Act -- Holder in due course -- There a presumption in favour of the holder in due course that the instrument was drawn for consideration, unless the contrary is proved -- Bank is bound to make payment to the bearer -- Dishonour of the cheque was for the reason that the account of the petitioner did not carry sufficient funds -- Plea that the cheque being a self cheque would not attract Section 138 of the NI Act, is not tenable.

(Para 5)

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 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)

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. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 – Non-compoundable offence -- Compromise between parties – Inherent power of High Court -- There can never be any hard and fast category which can be prescribed to enable the Court to exercise its power u/s 482 of the Cr.P.C. -- Only principle that can be laid down is the one which has been incorporated in the Section itself, i.e., "to prevent abuse of the process of any Court" or "to secure the ends of justice". Further held:

-- Power to do complete justice is the very essence of every judicial justice dispensation system.

-- No embargo, be in the shape of Section 320(9) of the Cr.P.C., or any other such curtailment, can whittle down the power under Section 482 of the Cr.P.C.

-- Compromise, in a modern society, is the sine qua non of harmony and orderly behaviour. It is the soul of justice and if the power u/s 482 of the Cr.P.C. is used to enhance such a compromise which, in turn, enhances the social amity and reduces friction, then it truly is "finest hour of justice".

-- Disputes which have their genesis in a matrimonial discord, landlord-tenant matters, commercial transactions and other such matters can safely be dealt with by the Court by exercising its powers under Section 482 of the Cr.P.C. in the event of a compromise, but this is not to say that the power is limited to such cases.

-- There can never be any such rigid rule to prescribe the exercise of such power, especially in the absence of any premonitions to forecast and predict eventualities which the cause of justice may throw up during the course of a litigation.

Only inevitable conclusion is that there is no statutory bar under the Cr.P.C. which can affect the inherent power of this Court u/s 482. Further, the same cannot be limited to matrimonial cases alone and the Court has the wide power to quash the proceedings even in non-compoundable offences notwithstanding the bar under Section 320 of the Cr.P.C., in order to prevent the abuse of law and to secure the ends of justice.

(Para 28-33)

B. Code of Criminal Procedure, 1973 (2 of 1974), Section 320, 482 – Section 482 – Ex-Debitia Justitia -- Non-compoundable offence -- Compromise between parties – Inherent power of High Court -- Power u/s 482 of the Cr.P.C. is to be exercised Ex-Debitia Justitia to prevent an abuse of process of Court:

-- There can neither be an exhaustive list nor the defined para-meters to enable a High Court to invoke or exercise its inherent powers. It will always depend upon the facts and circumstances of each case.

-- Power u/s 482 of the Cr.P.C. has no limits. However, the High Court will exercise it sparingly and with utmost care and caution. Exercise of power has to be with circumspection and restraint.

-- Court is a vital and an extra-ordinary effective instrument to maintain and control social order. Courts play role of paramount importance in achieving peace, harmony and ever-lasting congeniality in society. Resolution of a dispute by way of a compromise between two warring groups, therefore, should attract the immediate and prompt attention of a Court which should endeavour to give full effect to the same unless such compromise is abhorrent to lawful composition of the society or would promote savagery.

(Para 34)

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. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 – Cheque by company -- Incharge and responsible for conduct of business company – Pleadings as to role -- It is necessary to specifically aver in a complaint u/s 141 that at the time the offence was committed, the person accused was in charge of, and responsible for the conduct of business of the company -- This averment is an essential requirement, without this averment being made in a complaint, the requirements of Section 141 cannot be said to be satisfied.

(Para 1(a), 16(a))

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Cheque by company -- Director of company – Merely being a director of a company is not sufficient to make the person liable u/s 141 of the Act -- The requirement of Section 141 is that the person sought to be made liable should be in charge of and responsible for the conduct of the business of the company at the relevant time -- This has to be averred as a fact as there is no deemed liability of a director in such cases.

(Para 1(b), 16(b))

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 138, 141 -- Cheque by company -- Managing Director of company -- Joint Managing Director of company – Signatory of cheque -- By virtue of the office they hold as Managing Director or Joint Managing Director, these persons are in charge of and responsible for the conduct of business of the company -- Therefore, they get covered u/s 141 -- So far as signatory of a cheque which is dishonoured is concerned, he is clearly responsible for the incriminating act and will be covered under sub-section (2) of Section 141.

(Para 1(c), 16(c))

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 6, 8, 9, 17, 85A, 138 -- Pay Order – Holder in due course -- Dishonour of pay order – Maintainability of cheque bounce complaint -- Complainant-bank was well within its right to possess the cheque and to receive or recover the amount covered by the instrument -- High Court quashed the complaint on the ground that Pay order is not cheque -- Supreme Court dissented – Appeal allowed, impugned judgment, set aside -- Trial to proceed.

(Para 2, 18, 21)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 6, 85A, 131A – Draft – Pay order – Cheque -- Section 85A deals with drafts drawn by one branch of a bank on another branch of the same bank -- Such draft is a negotiable instrument -- Section 131A makes all the provisions for crossing of cheques applicable to the drafts also.

(Para 9, 10)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 8, 9, 50, 85A, 118(g) -- Pay order – Holder in due course – Endorsement – Presumption – High Court took the view that complainant was not a holder in due course in the absence of an endorsement made on the instrument in the manner prescribed under section 50 of the Act – Held, this ground was adopted by the High Court without regard to certain relevant provisions of the Act – Complainant-company is the holder of the instrument on its own right and could be a holder in due course also until the concerned party adduces evidence to rebut the presumption -- It is open to the respondents to rebut the presumption in the trial but till then the High Court could not say that the complainant is not a holder in due course..

(Para 20-23)

Negotiable Instruments Act, 1881 (26 of 1881), Section 118, 138, 139 – Cheque bounce complaint – Presumption – Rebuttal -- Provided the facts required to form the basis of a presumption of law exists, no discretion is left with the Court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary -- Rebuttal does not have to be conclusively established but such evidence must be adduced before the Court in support of the defence that the Court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the ’prudent man’.

(Para 19)

A. Negotiable Instruments Act, 1881 (26 of 1881), Section 1 -- Object and purpose of NI Act -- The negotiable instruments are, in fact, the instruments of credit being convertible on account of the legality of being negotiated and thus easily passable from one hand to another. The source of Indian law relating to such instruments is admittedly the English Common Law. The main object of the Act is to legalise the system by which instruments contemplated by it could pass from hand to hand by negotiation like any other goods. The purpose of the Act was to present an orderly and authoritative statement of the leading rules of law relating to the negotiable instruments. The Act intends to legalise the system under which claims upon mercantile instruments could be equated with ordinary goods passing from hand to hand. To achieve the objective of the Act, the Legislature in its wisdom thought it proper to make provision in the Act for conferring such privileges to the mercantile instruments contemplated under it and provide special procedure in case the obligation under the instrument was not discharged.

(Para 5)

B. Negotiable Instruments Act, 1881 (26 of 1881), Section 138 – Interpretation -- It has, always to be kept in mind that Section 138 of The Act creates an offence and the law relating to the penal provisions has to be interpreted strictly so that non-one can ingeniously or insidiously or guilefully or strategically be prosecuted.

(Para 5)

C. Negotiable Instruments Act, 1881 (26 of 1881), Section 5, 6 – Post dated cheque -- Bill of Exchange – Cheque -- When a post-dated cheque is written or drawn, it is only a bill of exchange -- Post-dated cheque become a cheque under the Act on the date which is written on the said cheque.

(Para 6)

D. Negotiable Instruments Act, 1881 (26 of 1881), Section 72, 138 -- Presentation of cheque -- Bank, where to present – Drawer Bank – Cheque to be presented at the bank on which it is drawn if the drawer is to be held criminally liable -- Such presentation is necessarily to be made within six months at the bank on which the cheque is drawn, whether presented personally or through another bank, namely, the collecting bank of the payee.

(Para 9)

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 – 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)