Sending replacement cheque in closed cover refused by payee does not amount to payment under Section 138 NI Act Proviso (c) as payee must possess money; compounding requires complainant's consent.

JUDGMENT :

ANIL KUMAR CHOUDHARY, J.

Heard the parties.

2. This Criminal Miscellaneous Petition has been filed invoking the jurisdiction of this Court under Section 528 of the BNSS, 2023 with the prayer to quash and set aside the entire criminal proceeding arising out of Complaint Case No.2091 of 2022 including the order taking cognizance dated 31.03.2022 passed by learned Judicial Magistrate, Ranchi and all subsequent proceedings pending before the learned trial Court of the said complaint case, as well as the order dated 12.03.2024 passed by the learned Additional Judicial Commissioner-VIII, Ranchi in Criminal Revision No.511 of 2023 whereby and where under the learned Additional Judicial Commissioner-VIII, Ranchi dismissed the criminal revision.

3. The brief fact of the case is that the petitioners are the accused persons of the said Complaint Case No.2091 of 2022. The admitted case of the petitioner is that the petitioner issued a cheque for Rs.1,08,000/- to the complainant. The complainant presented the said cheque with its banker, but the said cheque was dishonored and the cheque return memo bore the remarks ‘account closed’. As even after the demand of the cheque amount needed by the complainant by contacting the Directors of the accused company; the accused persons failed and neglected to remit the cheque amount; the complainant sent a legal notice through his lawyer to the accused person of the case, demanding payment of cheque amount within 15 days from the receipt of the notice. The legal notice was returned by the postal services. The Director of the company namely Awdesh Kumar requested the complainant not to move forward with the complaint in respect of the offence punishable under Section 138 NI Act and promised that he will re-issue a new cheque but as ultimately, they did not pay the cheque amount hence, the complainant filed this complaint.

4. The learned Judicial Magistrate-XVI, Ranchi on the basis of the materials available in the record found prima facie case for the offences punishable under Section 138 read with Section 141 of the Negotiable Instruments Act and directed for issuance of summons. The said order of issuing summons has not been challenged by the petitioners in any manner by filing any criminal revision. Criminal Revision No.511 of 2023 was filed against the order dated 25.08.2023 passed by the learned Judicial Magistrate-XVI, Ranchi in connection with the said Complaint Case No.2091 of 2022 whereby a petition filed on behalf of the accused/petitioner namely Munish Vats seeking permission to compound the case has been rejected, but the said order dated 25.08.2023 passed by the learned Judicial Magistrate-XVI, Ranchi has not been challenged in this Cr.M.P.

5. The learned Additional Judicial Commissioner-VIII, Ranchi in the said order dated 12.03.2024 passed in Criminal Revision No.511 of 2023 relied upon the judgment of the Hon’ble Supreme Court of India in the case of JIK Industries Limited & Others vs. Amarlal V. Jumani & Another reported in (2012) 3 SCC 255, wherein in para-82, the Hon’ble Supreme Court of India has observed “therefore, Section 147 of NI Act must be reasonably construed to mean that as a result of the said section, the offences under the N.I. Act are made compoundable, but the main principle of such compounding, namely, the consent of the person aggrieved or the person injured or the complainant cannot be wished away nor can the same be substituted by virtue of of the NI Act” and went on to hold that without the consent of the aggrieved person