Sub : Giving back banker cheque to accused without taking it on record if compromise not made
A loan was given on the basis of a post dated cheque of Rs. 100000/-, when that post dated cheque was presented in December 2020, cheque was dishonored , notice u/s 138 was issued duly served as per postal track report, and a case u/s 138 was lodged, cognizance taken, Summon was issued and served on the accused by Regd post as per postal track report, thereafter Accused was called by Bailable Warrant which were duly executed. after execution of bailable warrant, on first hearing on 22.04.2022, A banker cheque equal to face value of amount of dishonored cheque was given in the court and accused put the condition of withdrawal of case. Complainant told accused to give interest @ 18% p.a. from the date of dishonor of cheque i.e. 15.12.2020 to 22.04.2022 + prosecution cost. On this accused refused to give more than face value of cheque. Now the hon’ble trial court gave the banker cheque back to accused without taking it on record.
So please let me know whether
1.Is it correct on the part of hon’ble trial court to give it back to accused without taking it record?
2. What should have been done by the complainant on 22.04.2022 ?
3. . What should the complainant do now ?
3. Can an application u/s 216 crpc for adding the offence u/s 422 IPC be made now ?
Any other guidelines , if possible citation also.
2 Answers from Attorneys
1. Facts will remain facts, the court is empowered to do anything in case of absence of a statutory provision.
2. The query though infructuous, the complainant should express his willingness to collect the bankers cheque.
3. See previous answer.
4 (3). A section rarely used but an option can be explored against the accused in a separate complaint as success in a 216 Crpc application is unlikely.
If the complainant does not accept the Banker's cheque amount and insists on the interest he will not be able to get anything in hand at all immediately but If he accepts the accused's banker cheque then the matter will have to be compromised and the interest will be lost.
The complainant's strategy should be to take what is coming his way and end the matter. If he indulges in 422 IPC application then he will have to contest a long legal battle without receiving anything right now. Chances are that he may succeed in securing a conviction u/s 422 and will be able to pressurise the accused to pay the interest, but the same is not advisable as even financiers forego their interest these days.
The trial has done wrong against which you may make a complaint against the court to the Courts to whom the trial court is subordinate.
The detailed advice has been given to you through other websites by me which you has to refer.
For details you may contact with me.
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