IMPORTANT POINT
Offence of dishonour of cheque is a compoundable offence.

Alexander Thomas, J.—The petitioner herein is the complainant in Annexure I complaint on the file of the Judicial First Class Magistrate Court-I, Vaikom wherein the offence alleged is one punishable under Sec.138 of the Negotiable Instruments Act. The dishonored cheque dated 29.01.2003 is for Rs.35,000/-. As the accused did not appear before the trial court, the case was included in the Long Pending case as L.P. No. 112/2004.

2. It is further stated that, thereafter the entire disputes between the complainant and the accused in relation to the dishonoured cheque involved in this case was resolved to the best satisfaction of both sides and that the complainant had received the full cheque amount of Rs.35,000/- from the accused in full and final settlement of all liabilities in relation to the dishonored cheque involved in this case. On this basis, the petitioner (complainant) herein had filed Anx-II application on 09.11.2017 seeking permission of the trial court to withdraw the complaint in terms of Sec.257 of the Code of Criminal Procedure.

However, the said plea made by the petitioner/complainant has been now rejected by the trial court as per impugned Anx-III order dated 09.11.2017.

3. Heard Sri. T. Manasy, learned counsel appearing for the petitioner/complainant and Sri. Saigi Jacob Palatty, learned Senior Government Pleader for respondent State.

4. The prayer in this Crl.M.C. is as follows:

“....................... to quash Annexure III order dated 09.11.2017 in LP 112/2004 on the file of Judicial First Class Magistrate Court-I Vaikom and be further pleased to allow Annexure - II petition, seeking permission to withdraw Annexure I complaint before the Judicial First Class Magistrate Court I, Vaikom.”

5. The impugned order dated 09.11.2017 passed by the trial court rejecting the plea of the complainant for withdrawal of the complainant reads as follows:

“Heard and perused the records. Case is now under LP and NBW is being repeated. From the petition, it is understood that the accused is available in the station and yet he is not turning up for taking bail and he is not showing any response to the process of the court. The case is of the year 2003 and accused have wasted several judicial hours and when the warrant is afraid to be executed, he striked a deal with the complaint.

Therefore complaint cannot be permitted to withdraw at this stage and this petition is therefore dismissed.”

6. The Apex Court in a recent decision in M/s.Meters and Instruments Pvt. Ltd. and Another v. Kanchan Mehta reported in [ILR 2017 (4) Kerala 181 = 2017 (5) KHC 177] has issued various directions in relation to complaints for offence under Section 138 of Negotiable Instruments Act and para 18 of the said decision reads as follows:

“18. From the above discussion following aspects emerge:

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

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

iii) Though compounding requires consent of both parties, even in absence of such consent, the Court, in the interests of justice, on being satisfied that the complainant has been d