Section 138 NI Act: dishonoured cheques & SUBSEQUENT settlement: enforceability
In the light of judgment rendered by Supreme Court in Gimpex
Private Ltd Vs Manoj Goel
The complaints under section 138 of Negotiable
Instruments Act constitutes bulk of the dockets of courts, resultantly huge
manhour is consumed in the process of adjudication. No doubt, in a modern world
where online platform provides access to all and the transmissions of
communications or remittance of payments could be done by blink of eye, still,
remittance of payables by way of cheques are a popular mode of payment. The
reason being that in commercial transactions, in particular, the supplies are
made on credit basis and once the goods are consumed in market, the remittance
towards supplies are made by the purchasers or requisitioner. Since, ready
liquidity for bulk purchases may not always be available, therefore, the system
of cheque is in vogue as a reassurance to the supplier that in due course the
payment shall be remitted, particularly, in the backdrop of market sentiments
which is often based on demand and supply basis and on the basis of actual sale
of products. No doubt, the commercial
angle has not been the only reason, even in individual cases, loans are
received with the assurance to pay back within stipulated time and therefore,
cheques have emerged as a bill of exchange and as a token of assurance of
repayment. The statutory back up was provided in 1988 in the Negotiable
Instruments Act 1881, with a view to accord credibility to the transactions by
cheque and penal prescription is provided for, if the cheque is bounced for
want of funds or otherwise.
Quite often it is also observed that in the event of
filing of complaints arising out of dishonour of cheque the accused during the
curre3ncy of the proceedings settles the matter with the complainant and yet
again cheques, pursuant to the settlement is issued by them. In case, the
cheques subsequent to settlement is also dishonoured, then fresh cause of
action arises for pursuing a new complaint and prosecuting the accused on that
premise. However, in such an event both sets of complaints i.e one pre-settlement
complaint and the subsequent one i.e post settlement complaint remains in the
dockets of the courts. In view of pendency of both sets of cases for
convenience it could be referred to as “new set of case” and old set of cases”
continues entailing not only complexities with regard to raising diverse
defence and multiplicity of proceedings, thereby further delaying the
adjudication hence, keeping in view the imbroglio as is manifest in the
above circumstances, the three judge bench of Supreme Court in a matter
captioned as Gimpex Pvt. Ltd. Vs. Manoj Goel 2021
(12) SCALE has now settled the law and the “Gimpex” judgment provides for that
only the new set of complaints shall be continued and the old set of complaints
could be quashed or may remained standstill. The provision is made in the said
judgment that in the event, the new settlement is found to have been executed
out of coercion and /or is otherwise illegal, then, the old complaint could be
revived. in this way, a solution has been clearly provided for now.
FINDING
OF THE HIGH COURT
In Gimpex (Supra), the settlement was
arrived at between the parties during the currency of the proceedings and the
ld Single Judge of Madras High Court, while allowing the petition under Section
482 and quashing the proceedings in the second complaint arising out of the
cheques issued pursuant to the settlement and had provided the following
reasons:
“19. […] without going into the validity of the deed
of compromise the cheques issued on the deed of compromise culminated in C.C.
No. 389 of 2017. Though part of compromise deed executed by the parties, the
complaint initiated on the cheques issued on the deed of compromise cannot be
sustained. Since originally the petitioners issued the first set of cheques on
their liability of payment towards the three High Seas Sale Agreements (HSS Agreements) with Aanchal Cement
Limited (ACL) is still pending as per the proceedings under the
Negotiable Instruments Act. Therefore, the second set of cheques issued only on
the basis of deed of compromise and those are not issued for any liability.
Also, when the very deed of compromise itself is challenged in the suit, the
cheques issued on the said deed of compromise cannot be construed as those
cheques were issued for discharging their liability.”
In the above extract, the Madras High Court has held
that since, the criminal complaints in respect of the dishonor of the first set
of cheques issued against the liability under the HSSA are still pending, the
second set of cheques issued on the basis of the deed of compromise “are not
issued for any liability”. Moreover, the High Court has also noted and held
that since the validity of the deed of compromise is challenged in the suit
pending before the High Court, the cheques issued on the basis of the deed of
compromise cannot be construed towards the discharge of liability.
SUPREME
COURT
Before the Supreme Court, therefore, the order passed
by the High Court was assailed to the effect that the high court had wrongly
quashed the second complaint under Section 138 on the ground on the premise
that the cheques which were issued in pursuance of the deed of compromise and
could not be construed to be in discharge of a liability.
Interestingly, in a companion appeal, which has been
instituted by ACL and its directors (Manoj Goel and Mukesh Goel), the order of
the High Court allowing the first complaint in respect of the first set of
cheques to continue was assailed.
The nature of the offence under Section 138 of the
Negotiable Instruments Act is quasi-criminal in that, while it arises out of a
civil wrong, the law, however, imposes a criminal penalty in the form of
imprisonment or fine. As narrated above, the object of the enactment is to
accord security to creditors and instil confidence in the banking system of the
country. It is also worthwhile to state that the nature of the proceedings
under Section 138 of the Negotiable Instruments Act was considered by a three judge
Bench decision of Supreme Court in P Mohanraj and Others v. Shah Brothers
Ispat Private Limited (2021) 6 SCC 258 wherein it is held as under:
“53. A perusal of the judgment in S.A.L. Narayan
Row v. Ishwarlal Bhagwandas, (1966) 1 SCR 190 would show that a civil
proceeding is not necessarily a proceeding which begins with the filing of a
suit and culminates in execution of a decree. It would include a revenue
proceeding as well as a writ petition filed under Article 226 of the
Constitution, if the reliefs therein are to enforce rights of a civil nature.
Interestingly, criminal proceedings are stated to be proceedings in which the
larger interest of the State is concerned. Given these tests, it is clear that
a Section 138 proceeding can be said to be a “civil sheep” in a “criminal
wolf’s” clothing, as it is the interest of the victim that is sought to be
protected, the larger interest of the State being subsumed in the victim alone
moving a court in cheque bouncing cases, as has been seen by us in the analysis
made hereinabove of Chapter XVII of the Negotiable Instruments Act.”
It is thus observed in Gimpex (Supra)
that as the primary purpose of Section 138 of the Negotiable Instruments Act is
to ensure compensation to the complainant, the Negotiable Instruments Act also allows for parties to enter into a
compromise, both during the pendency of the complaint and even after the
conviction of the accused. The Supreme Court has also summarised in Meters
and Instruments (P) Ltd. v. Kanchan Mehta (2021) SCC Online SC 485, the
objective of allowing compounding of an offence under Section 138 of the NI
Act:
“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.”
The decision in Meters and Instruments (supra)
is in respect to the rationale behind compounding of offences punishable under
Section 138. In Damodar S Prabhu v. Sayed Babalal (2010) 5 SCC 663, a
three judge Bench of Supreme Court has observed that the effect of an offence
under Section 138 of the NI Act is limited to two private parties involved in a
commercial transaction. However, the intent of the legislature in providing a
criminal sanction for dishonour of cheques is to ensure the credibility of
transactions involving negotiable instruments. The Court observed:
“4. It may be noted that when the offence was inserted
in the statute in 1988, it carried the provision for imprisonment up to one
year, which was revised to two years following the amendment to the Act in
2002. It is quite evident that the legislative intent was to provide a strong
criminal remedy in order to deter the worryingly high incidence of dishonour of
cheques. While the possibility of imprisonment up to two years provides a
remedy of a punitive nature, the provision for imposing a “fine which may extend
to twice the amount of the cheque” serves a compensatory purpose. What must be
remembered is that the dishonour of a cheque can be best described as a
regulatory offence that has been created to serve the public interest in
ensuring the reliability of these instruments. The impact of this offence is
usually confined to the private parties involved in commercial transactions.”
It is further observed in the context that under the
shadow of Section 138 of the Negotiable Instruments Act, the parties are
encouraged to settle the dispute resulting in ultimate closure of the case
rather than continuing with a protracted litigation before the court. This is
beneficial for the complainant as it results in early recovery of money;
alteration of the terms of the contract for higher compensation and avoidance
of litigation. Conversely, the accused is also benefitted as it leads to avoidance
of a conviction and sentence or payment of a fine. It also leads to unburdening
of the judicial system, which has a huge pendency of complaints filed under
Section 138 of the Negotiable Instruments Act. In Damodar S. Prabhu
(supra) the Supreme Court had emphasised that the compensatory aspect of the
remedy under Section 138 of the Negotiable Instruments Act must be preferred
and has encouraged litigants to resolve disputes amicably. The Court observed:
“18. It is quite obvious that with respect to the
offence of dishonour of cheques, it is the compensatory aspect of the remedy
which should be given priority over the punitive aspect. There is also some
support for the apprehensions raised by the learned Attorney General that a
majority of cheque bounce cases are indeed being compromised or settled by way
of compounding, albeit during the later stages of litigation thereby
contributing to undue delay in justice delivery. The problem herein is with the
tendency of litigants to belatedly choose compounding as a means to resolve
their dispute. Furthermore, the written submissions filed on behalf of the
learned Attorney General have stressed on the fact that unlike Section 320
CrPC, Section 147 of the Negotiable Instruments Act provides no explicit
guidance as to what stage compounding can or cannot be done and whether
compounding can be done at the instance of the complainant or with the leave of
the court.
Quite recently a Constitution Bench of Supreme Court
in Re: Expeditious Trial of Cases under Section 138 of the NI Act 1881
(Suo motu Writ Petition (Crl) No.2 of 2020) , has observed that
“5. The situation has not improved as courts continue
to struggle with the humongous pendency of complaints under Section 138 of the
Act. The preliminary report submitted by the learned Amici Curiae shows that as
on 31.12.2019, the total number of criminal cases pending was 2.31 crores, out
of which 35.16 lakh pertained to Section 138 of the Act. The reasons for the
backlog of cases, according to the learned Amici Curiae, is that while there is
a steady increase in the institution of complaints every year, the rate of
disposal does not match the rate of institution of complaints. Delay in
disposal of the complaints under Section 138 of the Act has been due to reasons
which we shall deal with in this order.
[…] 23. Though we have referred all the other issues
which are not decided herein to the Committee appointed by this Court on
10.03.2021, it is necessary to deal with the complaints under Section 138
pending in Appellate Courts, High Courts and in this Court. We are informed by
the learned Amici Curiae that cases pending at the appellate stage and before
the High Courts and this Court can be settled through mediation. We request the
High Courts to identify the pending revisions arising out of complaints filed
under Section 138 of the Act and refer them to mediation at the earliest. The
Courts before which appeals against judgments in complaints under Section 138
of the Act are pending should be directed to make an effort to settle the
disputes through mediation.”
It was also observed by the Supreme Court that the
pendency of court proceedings under Section 138 of the Negotiable Instruments
Act and the multiplicity of complaints in which a cause of action arising from
one transaction is litigated has dampened the ease of doing business in India,
impacted business sentiments and hindered investments from investors. Taking
note of the situation, the Ministry of Finance by a notice dated 8th
June 2020, has sought comments regarding decriminalisation of minor offences,
including Section 138 of the Negotiable Instruments Act to improve the business
sentiment in the country. In this backdrop, the supreme court has delved in the
issue regarding pendency of parallel proceedings for complaints under Section
138 of the Negotiable Instruments Act.
The question that arises for the consideration of
Supreme Court in Gimpex (Supra) was whether once the
settlement has been entered into, the complainant can be allowed to pursue the
original complaint under Section 138 of the Negotiable Instruments Act. It
is held as under:
37. Allowing prosecution under both sets of complaints
would be contrary to the purpose of the enactment. As noted above, it is the
compensatory aspect of the remedy that should be given priority as opposed to
the punitive aspect. The complainant in such cases is primarily concerned with
the recovery of money, the conviction of the accused serves little purpose. In
fact, the threat of jail acts as a stick to ensure payment of money. This Court
in R. Vijayan v. Baby (2012) 1 SCC 260 has emphasised how punishment of
the offender is of a secondary concern for the complainant in the following
terms:
“17. The apparent intention is to ensure that not only
the offender is punished, but also ensure that the complainant invariably
receives the amount of the cheque by way of compensation Under Section
357(1)(b) of the Code. Though a complaint Under Section 138 of the Act is in
regard to criminal liability for the offence of dishonouring the cheque and not
for the recovery of the cheque amount (which strictly speaking, has to be
enforced by a civil suit), in practice once the criminal complaint is lodged Under
Section 138 of the Act, a civil suit is seldom filed to recover the amount of
the cheque. This is because of the provision enabling the court to levy a fine
linked to the cheque amount and the usual direction in such cases is for
payment as compensation, the cheque amount, as loss incurred by the complainant
on account of dishonour of cheque. Under Section 357(1)(b) of the Code and the
provision for compounding the offences Under Section 138 of the Act most of the
cases (except those where liability is denied) get compounded at one stage or
the other by payment of the cheque amount with or without interest. Even where
the offence is not compounded, the courts tend to direct payment of
compensation equal to the cheque amount (or even something more towards
interest) by levying a fine commensurate with the cheque amount. A stage has
reached when most of the complainants, in particular the financing institutions
(particularly private financiers) view the proceedings under Section 138 of the
Act, as a proceeding for the recovery of the cheque amount, the punishment of
the drawer of the cheque for the offence of dishonour, becoming secondary.”
It is thus held in Gimpex (Supra) as under:
“38. When a complainant party enters into a compromise
agreement with the accused, it may be for a multitude of reasons – higher
compensation, faster recovery of money, uncertainty of trial and strength of
the complaint, among others. A complainant enters into a settlement with open
eyes and undertakes the risk of the accused failing to honour the cheques
issued pursuant to the settlement, based on certain benefits that the
settlement agreement postulates. Once parties have voluntarily entered into
such an agreement and agree to abide by the consequences of non-compliance of
the settlement agreement, they cannot be allowed to reverse the effects of the
agreement by pursuing both the original complaint and the subsequent complaint
arising from such non-compliance. The settlement agreement subsumes the
original complaint. Non-compliance of the terms of the settlement agreement or
dishonour of cheques issued subsequent to it, would then give rise to a fresh
cause of action attracting liability under Section 138 of the NI Act and other
remedies under civil law and criminal law.
39. A contrary interpretation, which allows for the
complainant to pursue both the original complaint and the consequences arising
out of the settlement agreement, would lead to contradictory results. First, it
would allow for the accused to be prosecuted and undergo trial for two
different complaints, which in its essence arise out of one underlying legal
liability. Second, the accused would then face criminal liability for not just
the violation of the original agreement of the transaction which had resulted
in issuance of the first set of cheques, but also the cheques issued pursuant
to the compromise deed. Third, instead of reducing litigation and ensuring
faster recovery of money, it would increase the burden of the criminal justice
system where judicial time is being spent on adjudicating an offence which is
essentially in the nature of a civil wrong affecting private parties – a
problem noted in multiple judgements of this Court cited above. Most
importantly, allowing the complainant to pursue parallel proceedings, one
resulting from the original complaint and the second emanating from the terms
of the settlement would make the settlement and issuance of fresh cheques or
any other partial payment made towards the original liability meaningless. Such
an interpretation would discourage settlement of matters since they do not have
any effect on the status quo, and in fact increase the protracted litigation
before the court.
40. Thus, in our view, a complainant cannot pursue two
parallel prosecutions for the same underlying transaction. Once a settlement
agreement has been entered into by the parties, the proceedings in the original
complaint cannot be sustained and a fresh cause of action accrues to the
complainant under the terms of the settlement deed.
Earlier, the Supreme Court in K Bhaskaran v.
Sankaran Vaidhyan Balan (1999) 7 SCC 510 had observed:
“14. The offence under Section 138 of the Act can be
completed only with the concatenation of a number of acts. The following are
the acts which are components of the said offence:
(1) drawing of the cheque,
(2) presentation of the cheque to the bank,
(3) returning the cheque unpaid by the drawee bank,
(4) giving notice in writing to the drawer of the
cheque demanding payment of the cheque amount,
(5) failure of the drawer to make payment within 15
days of the receipt of the notice.”
The Supreme Court based on the above discussion in Gimpex
(Supra) has held that:
45. Based on the discussion above, in our opinion,
once the compromise deed was agreed, the original complaint must be quashed and
parties must proceed with the remedies available in law under the settlement
agreement.
46. Once a settlement agreement has been entered into
between the parties, the parties are bound by the terms of the agreement and
any violation of the same may result in consequential action in civil and
criminal law.
The question before the Supreme Court, thus, as to
whether parallel prosecutions arising out of a single transaction under Section
138 of the Negotiable Instruments Act can be sustained, in case, a set of
cheques were dishonoured, leading to filing of the first complaint under
Section 138 of the Negotiable Instruments Act and if the parties thereafter
entered into a deed of compromise to settle the matter, while the first
complaint was pending. The same is duly answered by the Supreme Court to the
effect that if the cheques issued pursuant to the compromise deed were
dishonoured leading to the second complaint under Section 138 of the Negotiable
Instruments Act, and if both proceedings remained pending simultaneously the
recourse in this backdrop as per the categorical finding of the Supreme Court
is that the complainant cannot be allowed to pursue both the cases and that the
prior complaint i.e the one instituted before settlement may either be quashed
or could not be proceeded with or may be suspended. However, in the event, the
subsequent agreement itself is held to be illegal and executed through coercion
or fraud, the second complaint is quashed and/or dismissed, that the first
complaint in that contingency could be revived. Stil further, if the first complaint
is quashed during the pendency of second complaint and in case, on the above
premise, if the second complaint itself is dismissed, the first complaint, even
if quashed could be revived.
------
Anil K Khaware
Founder & Senior
Associate
No comments:
Post a Comment