Precarious nostrum for reducing pendency

October 22, 2014 - admin

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Published by : Advocate John S.Ralph

The correctness of the decision of the Supreme Court in Damodar S. Prabhu Vs Sayed Babala reported in 2010 (2) KHC 428 in fixing guidelines for imposing cost while compounding cheque bouncing cases is strongly doubted.      The guidelines say that the accused should be made to pay cost at the rate of 10 to 20 % of the cheque amount depending upon the stage of the proceedings; i.e. from the Trial Court to the Apex Court.

     Most interestingly the guidelines also mandate for a summons that gives an option to the accused to settle the matter at the earliest opportunity by compounding it, so that he can avoid paying cost !! Hence the court issuing summons, presupposes that the accused has committed the offence for which he will be punished in terms of cost for a delayed settlement !! And his valuable right to defend himself is under the Damocles sword of paying cost in case he settles the matter on a later stage. We are at a loss to understand the logic behind it.      These apart, how can one think that a person who has not cared to honour the demand notice by making the payment will do it on getting the summons within a few months from the court ?

     And in fixing these guidelines the Apex court was advised by the Solicitor General ! Being a lawyer practicing in the lowest forum of the criminal courts, I find it difficult to digest the guidelines, which only will tend to prolong the matters which , in turn will increase the pendency .

     The guidelines are intended for reducing the pendency in courts. It is seen from the judgment that 38 lakhs of cheque bouncing cases are pending in India. And according to the learned Solicitor General, the cause of this pendency is partly attributable to compounding the matter at a later stage. Statistically it may be true. But why it happens should be the logical concern. Every accused will try his level best to defend the case for getting an acquittal. But it is on his failure, he settles the matter. And it is also to be noted that a large number of cheque bouncing case are being acquitted now a days. So how can the system prevent an accused from trying his luck in defence and on its failure to settle it ?

       On the practical side : A large number of cheque bouncing cases are being instituted on filled up blank cheques. The complainants also could not be blamed for that since they do it by considering the delay in getting the amount from the accused through the process of the court. In the present system the minimum delay is not less than 5 years. So at the time of getting the demand notice or the summons, the accused will not be ready to pay since the demand in the notice is exorbitant. And the adamancy of the litigants dissolves eventually on waiting on the Veranda of the Court. It is at that stage, the parties comes to a settlement. And in many cases , the matters are settled out of court on an amount that is much lesser than the cheque amount.

     So if the court is imposing cost on them, it will again cast an additional burden on the litigant and will cause further delay in compounding. And in matters involving larger amounts, the direction to pay 10 or 15 % of the cheque amount may lead to a revision petition ( since no appeal lies) to get the same reduced and thereby adding an appellate proceedings for reducing a lower court pendency !!  In cases involving lesser amounts, if the accused is not paying the compounding cost, the court has to invoke Revenue Recovery proceedings U/s 421 Cr.P.C using a large amount of both Judicial and Executive time and machinery ! All these unnecessary exercises are for permitting the litigants to exercise their statutory right of compounding and thereby helping the court in reducing pendency !!

   At the same time, to get over the Guidelines on ‘compounding cost’ the complainant can either withdraw the prosecution U/s 257 Cr.P.C or remain absent and secure an acquittal for the accused U/s 256 ( 1) Cr.P.C In the appellate or revisional stage the parties can, on concurrence ask the court to remand the matter to the trial court and withdraw it after the remand. These tactics will only result in multiplicity of proceedings and pendency in criminal courts.

     In Kerala, all the cheque bouncing cases ends with an imprisonment till raising of the court with a direction to pay the cheque amount. Hence for avoiding the payment of ‘compounding cost’ the accused can undergo the same and deposit the amount before the court and the complainant can withdraw the same through another long process like cheque application etc. Hence there are so many ways of getting over the guidelines issued by the Supreme Court and all these will increase pendency. By fixing the guidelines , virtually the Apex Court is discouraging compounding wherein it should have encouraged it by giving some advantages to the accused.

     On the theoretical side : Compounding an offence U/s 138 N.I Act is a statutory right, that too is brought to the statue on a later stage, after fully realizing the need for such a provision. There is no legislative vacuum in it for the Supreme Court to fill. If the legislators want to raise funds for incurring the expenditure in these litigations, barring the fact that it is criminal proceedings, N.I act being a special statute , by invoking the powers conferred U/s 4 of the Cr.P.C , parliament can fix a court fee to be paid. And on conviction the same can be ordered to be paid by the accused by invoking Section 357 (1) Cr.P.C as the expenditure incurred for the prosecution.

         But even then fact remains that the concern of the criminal court is to see that the offender is punished for the wrong he has committed ; even when the crime is purely inter- personal.   Take for example the matrimonial offences of adultery or bigamy. Only the spouse can be an aggrieved party ; not the state. In those cases are also the state is incurring expenditure for trying a pure inter-party bedroom offence !   Hence the view that in cheque bouncing cases, only private parties’ interest is involved is incorrect. Especially when the court thinks that Chapter XVII is included in the N.I Act to give more authenticity to cheque transactions.

         Here also the concept is a bit mistaken. By incorporating the said chapter, the number of cheque bouncing has only increased. This is why because in each and every money transaction, cheques are being given or received as security ; which bounces later on. The chapter is only intended to punish such bouncing which helps the complainant to realize the amount through a threat of incarceration. The horrifying figure of 38 lakhs of pending cases also has to be viewed in its right sense. A day’s cheque honourings in Banks in India will be millions. And this 38 lakhs over these years is only a negligible percentage of the number of honoured cheques.

     Another aspect in delayed settlement is the poverty of the litigant. The person who receives a loan on the strength of a blank cheque is the one in acute need of money. The moment his plans of repaying collapses, he is destined to be before a criminal court. And a person who has the means of compounding the matter at the stage of the demand notice will not be   interested in paying a lawyer for a decade and waiting on the court veranda. So barring an ignorable number of cases, majority are pending for paucity of funds for compounding at the earliest opportunities.

     Enforcing the rights of the victim, giving a fair trial to the litigants and punishing the guilty are the fundamental duties of the criminal administration system. The moment the courts feel that the litigants are wasting the time of the court by contesting the matter, the entire system collapses and the court is mocking the society that enjoys a fair trial. There are so many IPC offences those can be compounded and a majority of them are being compounded at the stage of the trial itself.   Due to the pendency in trial courts, such compounding comes only after a 4 or 5 years. And the courts are advising and at times even compelling the parties to compound them and thus the matter ends. In such cases, who is responsible for the pendency and waste of judicial time ? None other than the complainant himself ! He should have pardoned the accused at the earliest opportunity itself rather than employing the executive ( police) and judicial machinery for many years only to see that the matter is settled when he gets summons from the court as a witness. Will any court impose cost on the complainant or the accused in such cases ?

   The apex court may be right in imposing compounding cost on Multi National Companies who fight up to the last stage on the so called “Question of Law” and that too even after admitting the underlying debt ! but not on the poor litigant who happened to be dragged into the criminal court for poverty. How could the Apex court turn blind to this poignant reality?