Accused must show willingness to pay interest and costs to be considered for discharge under Section 138 of the NI Act.

ORDER :

1. This petition is filed under Article 227 of the Constitution of India, wherein, the petitioner has challenged the order dated 17.01.2022, passed by the learned Additional Civil Judge & J.M.F.C., Gir-Somnath (in brief, ‘the trial Court’), in the application, Exhibit 39 in Criminal Case No. 232 of 2016.

2. Heard, learned Advocate, Mr. R.N. Majmudar, with learned Advocate, Mr. N.K. Majmudar, appearing for the petitioner and learned APP, Mr. L.B. Dabhi, for the Respondent-State.

3. Learned Advocate, Mr. Majmudar, appearing for the petitioner submitted that the original complainant-Respondent No.2, herein, had filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter, ‘NI Act’), being Criminal Case No. 232 of 2016, before the trial Court concerned at Veraval.

3.1 It was submitted that the trial Court vide order dated 07.04.2021, convicted the petitioner and sentenced him to undergo simple imprisonment for the period of six months and to pay fine of Rs.4,00,000/-, as per Section 357(3) of the Code of Criminal Procedure, 1973 (for short, ‘the Code’). A copy of the order dated 07.04.2021 is placed on record at Page 41 of the compilation.

3.2 It was further submitted that the present petitioner had challenged the order dated 07.04.2021 by filing Criminal Appeal No. 15 of 2021 before the Sessions/Appellate Court.

3.3 It was submitted that the concerned Sessions/Appellate Court vide order dated 27.12.2021 allowed the said appeal by quashing and setting aside the order of conviction dated 07.04.2021, passed by the trial Court and remanded the matter back to the concerned trial Court. A copy of the said order is produced at page-52 of the compilation.

3.4 At this stage, learned Advocate for the petitioner submitted that, in the meantime, the petitioner had deposited Rs.4,00,000/-, i.e. the amount of the cheque, on 17.08.2021. A copy of the receipt issued by the concerned Court is produced at Page-66 of the compilation.

3.5 Learned Advocate, Mr. Majmudar, thereafter, submitted that after the matter was remanded back to the concerned trial Court, the petitioner filed application Exhibit-39 before the trial Court and requested that, in view of the decision of the Apex Court in the case of M/S. METERS AND INSTRUMENTS PVT. LTD. VS. KANCHAN MEHTA’ in Criminal Appeal No. 1731 of 2017, since, the cheque amount has already been deposited, the order of discharge under Section 258 of the Code be passed in favour of the petitioner.

3.6 However, by passing the impugned order, the concerned trial Court rejected the said application and therefore, the petitioner has preferred the present petition under Article 227 of the Constitution of India.

4. Learned Advocate, Mr. Majmudar, assailed the impugned order, mainly on the ground that the petitioner has deposited the amount of cheque, i.e. Rs.4,00,000/- before the concerned trial Court and therefore the trial Court is required to pass an order for discharge under Section 258 of the Code, in view of the decision rendered by the Apex Court in ‘M/S. METERS AND INSTRUMENTS PVT. LTD.’ (Supra).

4.1 Learned Advocate, Mr. Majmudar, therefore, urged that the impugned order passed by the trial Court be quashed and set aside.

5. On the other hand, learned APP, Mr. Dabhi, appearing for the Respondent-State opposed this petition and submitted that the concerned trial Court has placed reliance on the subsequent decision of the Apex Court in Suo Motu Writ petition being Criminal Appeal No. 2 of 2020, captioned as “Expeditious Trial Of Cases Under Section 138 Of N.I. Act, 1881”, rendered on 16.04.2021 and the concerned Trial Court has specifically referred to Paragraph-24 of the said decision, wherein, it has been held by the larger Bench of the Supreme Court that Section 258 of the Code is not applicable to the proceedings under Section 138 of the NI Act and the findings to the contrary in M/S. METERS AND INSTRUMENTS PVT. LTD. VS. KANCHAN MEHTA’ (Supra) do not lay down the correct law.

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