The court held that a settlement payment can constitute compounding of an offence under Section 138 of the N.I. Act, allowing for the quashing of the complaint even without the complainant's consent.

JUDGMENT :

[Y. G. KHOBRAGADE, J.]

1. Rule. Rule made returnable forthwith. With consent of both the parties, heard finally at the stage of admission.

2. By the present Petition, the Petitioners have challenged the Judgment and order dated 20.12.2022 passed by the learned Additional Sessions Judge, Court No.8 Aurangabad in Criminal Revision No. 228 of 2022, thereby affirmed the order dated 21.07.2022 below Exh.76 in SCC No. 4979 of 2015 passed by the learned JMFC Court No.11, Aurangabad.

3. The Petitioner is the original accused and Respondent is the original Complainant in SCC No. 4979 of 2015. For the sake of brevity, I would like to refer parties to the present Petition in their original capacity as “Complainant” and “Accused”.

4. The Complainant filed a Criminal complaint SCC No. 4979 of 2015 for the offence punishable under Section 138 of the N.I. Act alleging that, on 06.06.2015, the Accused issued two cheques Nos. 031165 and 031166 amount of Rs.1,00,000/- (One lakh) each in his favour drawn on Bank of Baroda, Aurangabad for discharging legal liabilities. Accordingly, he deposited both the cheques with his banker HDFC Bank Padampura Station Road, Aurangabad, however, both the cheques returned unpaid with bank memo dated 16.06.2015 on ground of “Insufficient Fund”. Thereafter, on 25.06.2015, he issued mandatory notice under Section 138 of the N.I. Act and called upon the accused to comply said notice within 15 days but the accused did not claim said notice. Therefore, he prayed for awarding of punishment u/s 138 of N.I. Act. Against the Accused.

5. On 03.08.2015, the learned JMFC passed an order in SCC No.4979 Of 2015 and issued process against the accused for the offence punishable under Section 138 of the N.I. Act.

6. Needless to say that, after service of summons, the accused appeared before the learned JMFC Court No.11, Aurangabad. On 03.01.2022, the Complainant and Accused have filed Joint Pursis and prayed for referring the matter before the Mediator for settlement. On the same day, the accused also filed Exh.69 an Application with prayer for referring the matter to the Mediator. The Accused undertook that, he shall pay amount of Rs.4,00,000/-(Four Lakh) towards final settlement to the Complainant before 31.03.2022. The Complainant also agreed to accept said amount towards final settlement. Therefore, the learned JMFC passed an order below Exh. 69 observing that, considering nature of the complaint and offence, the matter shall be referred to the Mediator as per the willingness of both parties.

7. On 31.03.2022, the accused and the Complainant filed Exhibit-73 Joint Pursis and stated that, as per settlement, the accused agreed to pay Rs.4,00,000/- (Four Lakhs) to the Complainant but on that day, the accused has only paid Rs.1,00,000/- (One Lakh) through Phone-Pay and agreed to pay remaining amount by the next date i.e., 20.04.2022. Again, on 20.04.2022, an amount of Rs.1,00,000/- (One Lakh) was paid to the Complainant through demand draft No. 000260 drawn on HDFC Bank. The accused had sought time to pay remaining amount of Rs.2,00,000/-(Two Lakhs) till next date. Thereafter, on 05.05.2022, the accused and Complainant filed joint pursis Exhibit-75 stating that, he has handed over demand draft dated 04.05.2022 to the amount of Rs.1,58,000/- and D.D. dated 05.05.2022 for amount of Rs.17,000/- and remaining amount of Rs.25,000/- paid in cash, i.e. Total amount of Rs.4,00,000/- (Four Lakhs) paid by the accused to the Complainant. The Complainant put her endorsement about receipt of cash of Rs.25,000/- at pursis Exhibit-75. Thereafter, the accused filed Exhibit-76 an Application for disposal of the Complaint and acquittal on account of making payment of settlement of Rs.4,00,000/- (Four Lakhs) to the complainant towards full and final. The Complainant filed say and resisted said application on ground that, there is delay while making payment as per terms of compromise and he has suffered lot and spent huge time to attend the Court