V M CHOPRA Vs. STATE

JUDGEMENT

(1.) HEARD Petitioner is being prosecuted since 10.6.93 for having committed offence under Section 138 of the Negotiable Instruments Act (in short 'the Act'). It appears that on 3.7.1997, when the case was field for recording the defence evidence, the petitioner moved an application requesting therein that the case be disposed of in terms of the compromise having arrived at between the parties. A compromise deed/settlement deed, certain affidavits were also filed, prima facie suggesting that the respondent No.2. Subhash Maheshwari had settled his dispute with the petitioner finally against a payment of Rs. 1.50 lacs. In order to satisfy himself, learned Magistrate called the complainant Subhash Maheshwari who though admitted that he had received a sum of Rs. 1.50 lacs from the petitioner towards his debt due from him, yet the same was a partial payment of such debt. Learned Magistrate pointed out that he further enquired of Subhash Maheshwari complainant as to whether he wanted to withdraw from the prosecution but the complainant refused to withdraw from the prosecution. Learned Magistrate, therefore, observed that since the offence under Section 138 of the Act was not compoundable and the complainant had refused to withdraw from the prosecution, the petitioner may produce and prove evidence in his possession regarding the composition of the offence and/or payment of the amount of dishonoured cheque to Subhash Maheshwari, at the time of his defence. Observing thus learned Magistrate dismissed the petitioner's application dated 3.7.97.

(2.) IN the course of arguments, it was suggested that Subhash Maheswari complainant may be asked to appear in person before the Trial Court and the petitioner may be allowed to cross-examine him with reference to the receipts/agreement/compromise deed in has possession. Learned Counsel for the complainant assured that Subhash Maheswari would be produced in the Trial Court on 2.9.1998. The petitioner may, if he so likes, move an application requesting the court to recall the complainant under Section 311 Cr.P.C. and permit him to examine the complainant with reference to documents sought to be relied upon by the petitioner in support of his claim of having satisfied the debt.