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Gulabjeet Singh and Others V/S Ravel Singh

    Cr. Rev. No. 383 of 2016

    Decided On, 13 November 2018

    At, IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

    By, THE HONORABLE JUSTICE: TARLOK SINGH CHAUHAN

    For Petitioner: K.S. Kanwar, Advocate And For Respondents: Satyen Vaidya, Sr. Advocate and Vivek Sharma, Advocate



Judgment Text


1. This petition takes exception to the order passed by the learned trial Magistrate dated 19.09.2016, whereby the application filed by the petitioner under Section 258 Cr.P.C. in proceedings under Section 138 of the Negotiable Instrument Act (for short the 'N.I. Act'), came to be dismissed.

2. However, the moot question is whether the provisions of Section 258 Cr.P.C. for stopping all the proceedings are applicable to the proceedings initiated under Section 138 of the N.I. Act.

3. Section 258 Cr.P.C. reads as under:-

"Power to stop proceedings in certain cases-In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, and in any other case, release the accused, and such release shall have the effect of discharge."
4. The plain reading of the aforesaid section reveals that the same can be attracted only in cases filed other than upon complaint, meaning thereby, if prosecution is launched by the State then this Section will be attracted. However, where a complaint is filed by a private party e.g. complaint under Section 138 of the N.I. Act, then Section 258 Cr.P.C. would not apply and accused cannot be discharged under the aforesaid Section, save and except, to the extent as spelt out

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by the Hon'ble Supreme Court in its recent decision in Meters and Instruments Private Limited and another vs. Kanchan Mehta: 2018 (1) SCC 560, wherein it was held as under:-

11. While it is true that in Subramanium Sethuraman versus State of Maharashtra : 2004 13 SCC 324, this Court observed that once the plea of the accused is recorded under Section 252 of the Cr.P.C., the procedure contemplated under Chapter XX of the Cr.P.C. has to be followed to take the trial to its logical conclusion, the said judgment was rendered as per statutory provisions prior to 2002 amendment. The statutory scheme post 2002 amendment as considered in Mandvi Cooperative Bank and J.V. Baharuni has brought about a change in law and it needs to be recognised. After 2002 amendment, Section 143 of the Act confers implied power on the Magistrate to discharge the accused if the complainant is compensated to the satisfaction of the Court, where the accused tenders the cheque amount with interest and reasonable cost of litigation as assessed by the Court. Such an interpretation was consistent with the intention of legislature. The court has to balance the rights of the complainant and the accused and also to enhance access to justice. Basic object of the law is to enhance credibility of the cheque transactions by providing speedy remedy to the complainant without intending to punish the drawer of the cheque whose conduct is reasonable or where compensation to the complainant meets the ends of justice. Appropriate order can be passed by the Court in exercise of its inherent power under Section 143 of the Act which is different from compounding by consent of parties. Thus, Section 258 Cr.P.C. which enables proceedings to be stopped in a summons case, even though strictly speaking is not applicable to complaint cases, since the provisions of the Cr.P.C. are applicable "so far as may be", the principle of the said provision is applicable to a complaint case covered by Section 143 of the Act which contemplates applicability of summary trial provisions, as far as possible, i.e. with such deviation as may be necessary for speedy trial in the context.
5. It was on the basis of the aforesaid observation that the Hon'ble Supreme Court culled out the following principles:-

[18] From the above discussion following aspects emerge:

18.1 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.

18.2 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.

18.3 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.

18.4 Procedure for trial of cases under Chapter XVII of the Act has normally to be summary. The discretion of the Magistrate under second proviso to Section 143, to hold that it was undesirable to try the case summarily as sentence of more than one year may have to be passed, is to be exercised after considering the further fact that apart from the sentence of imprisonment, the Court has jurisdiction under Section 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.

18.5 Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the 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. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances.

6. And thereafter concluded by making the following observation in para 19, which reads thus:-

In view of the above, we hold that where the cheque amount with interest and cost as assessed by the Court is paid by a specified date, the Court is entitled to close the proceedings in exercise of its powers under Section 143 of the Act read with Section 258 Cr.P.C. As already observed, normal rule for trial of cases under Chapter XVII of the Act is to follow the summary procedure and summons trial procedure can be followed where sentence exceeding one year may be necessary taking into account the fact that compensation under Section 357(3) Cr.P.C. with sentence of less than one year will not be adequate, having regard to the amount of cheque, conduct of the accused and other circumstances.
7. Shri K.S. Kanwar, learned counsel for the petitioner, would vehemently argue that the Hon'ble Supreme Court itself has held that Section 258 Cr.P.C. will be applicable to proceeding initiated under Section 138 of the N.I. Act and, therefore, the Court below could not have rejected the application so filed by the petitioner.

8. Apparently, the application filed by the petitioner before the learned Court below under Section 258 Cr.P.C. was not on the ground that the cheque amount together with interest and cost as assessed by the Court had been paid, therefore, the Court should have closed the proceedings in exercise of power under Section 143 of the Act, read with Section 258 Cr.P.C. Rather the allegations in the application were that the complaint itself was not maintainable as there was no legal enforceable liability and there was already a civil suit pending inter se the parties regarding the liability of the complainant or accused person contingently fixed upon the partnership deed on the basis of which the cheque amount of Rs. 21 lacs, which is the subject matter of the complaint, had been issued.

9. It would be noticed that the facts before the Hon'ble Supreme Court in Meters and Instruments' case (supra) were that the cheque amount with interest and cost had been paid and it was in those circumstances that the provisions of Section 258 of the Code were held to be applicable so as to entitle and enable the Court to close the proceedings and discharge the accused.

10. It is more than settled that it is only the ratio of the judgment which has binding effect on the court subordinate to the court that passed the judgment.

11. The Hon'ble Supreme Court in Ambica Quarry Works v. State of Gujarat and others : (1987) 1 SCC 213 has held that the ratio of any decision must be understood in the background of the facts of that case. Relying on Quinn v. Leathem (1901) AC 495, it has been held that the case is only an authority for what it actually decides, and not what logically follows from it.

12. Lord Halsbury in the case of Quinn (supra) has ruled thus:-

".....there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all."

(Emphasis supplied)

13. In Krishena Kumar v. Union of India and others : (1990) 4 SCC 207, the Constitution Bench, while dealing with the concept of ratio decidendi, has referred to Caledonian Railway Co. v. Walker's Trustees (1882) 7 App Cas 259 : 46 LT 826 (HL) and Quinn (supra) and the observations made by Sir Frederick Pollock and thereafter proceeded to state as follows:-

"The ratio decidendi is the underlying principle, namely, the general reasons or the general grounds upon which the decision is based on the test or abstract from the specific peculiarities of the particular case which gives rise to the decision. The ratio decidendi has to be ascertained by an analysis of the facts of the case and the process of reasoning involving the major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration. If it is not clear, it is not the duty of the court to spell it out with difficulty in order to be bound by it. In the words of Halsbury (4th edn., Vol.26, para 573)

"The concrete decision alone is binding between the parties to it but it is the abstract ratio decidendi, as ascertained on a consideration of the judgment in relation to the subject matter of the decision, which alone has the force of law and which when it is clear it is not part of a tribunal's duty to spell out with difficulty a ratio decidendi in order to bound by it, and it is always dangerous to take one or two observations out of a long judgment and treat them as if they gave the ratio decidendi of the case. If more reasons than one are given by a tribunal for its judgment, all are taken as forming the ratio decidendi."

(Emphasis added)

14. In State of Orissa v. Mohd. Illiyas: (2006) 1 SCC 275, it has been stated by the Hon'ble Supreme Court thus:-

"12. ......According to the well-settled theory of precedents, every decision contains three basic postulates: (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is an authority for what it actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically flows from the various observations made in the judgment."

15. In Islamic Academy of Education v. State of Karnataka : (2003) 6 SCC 697, the Hon'ble Supreme Court has made the following observations:-

"2. .....The ratio decidendi of a judgment has to be found out only on reading the entire judgment. Infact, the ratio of the judgment is what is set out in the judgment itself. The answer to the question would necessarily have to be read in the context of what is set out in the judgment and not in isolation. In case of any doubt as regards any observations, reasons and principles, the other part of the judgment has to be looked into. By reading a line here and there from the judgment, one cannot find out the entire ratio decidendi of the judgment."
16. The said authorities have been relied upon in Natural Resources Allocation, in Re, Special Reference No. 1 of 2012 : (2012) 10 SCC 1.

17. Further, the judgments rendered by a court are not to be read as statutes. In Union of India v. Amrit Lal Manchanda and another : (2004) 3 SCC 75, it has been stated that observations of courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. The observations must be read in the context in which they appear to have been stated. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

18. The Hon'ble Supreme Court in Som Mittal v. Government of Karnataka : (2008) 3 SCC 574 observed that judgments are not to be construed as statutes. Nor words or phrases in judgments to be interpreted like provisions of a statute. Some words used in a judgment should be read and understood contextually and are not intended to be taken literally. Many a time a judge uses a phrase or expression with the intention of emphasizing a point or accentuating a principle or even by way of a flourish of writing style. Ratio decidendi of a judgment is not to be discerned from a stray word or phrase read in isolation (See: Arasmeta Captive Power Company Private Limited and another v. Lafarge India Private Limited : AIR 2014 SC 525.)

19. Moreover, it is not the Section but only the principles of Section 258 Cr.P.C. that have been held to be applicable to complaint cases that too only to the extent as enunciated by the Hon'ble Supreme Court in Meters and Instruments' case (supra) and in so far as the cases under Negotiable Instruments Act are concerned, then obviously it is only when the cheque amount with interest and cost as assessed paid by a specific date, the Court is entitled to close the proceedings in exercise of its power under Section 143 of the Act read with Section 258 Cr.P.C. and thereafter discharge the accused and not beyond that.

20. In view of the aforesaid discussion, I find no merit in this petition and the same is accordingly dismissed.

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