Order 13

Order Details: COPY OF ORDER
Pdf Text: IN THE COURT OF HARJOT SINGH,
METROPOLITAN MAGISTRATE – 01, N. I.
ACT, DIGITAL COURT
NEW DELHI DISTRICT, PATIALA HOUSE DISTRICT
COURTS, NEW DELHI.
RANJEETA YADAV, PROPRIETOR, M/S STAR GROUP Vs. BABLU
KUMAR CHAUDHARY
CC NO. 1911-2021
28.08.2023
Arguing Counsels: Sh. M.K. Sethi, Ld. Counsel for complainant.
Sh. Rahil Ahmed, Proxy Counsel for accused.
Vide this order, I shall dispose off the application moved by the complainant
under section 143A of NI (Amendment) Act, 2018 seeking interim compensation
from the accused.
1. On framing of notice under section 251 Cr.P.C vide order dated 07.03.2022
the accused pleaded not guilty to the accusation put to him. Learned counsel for
the complainant submits that the requirements for grants of interim compensation
u/s 143 A have been fulfilled and the court is fully empowered to award interim
compensation to the complainant. It is further argued that the strength of the
defence is not required to be considered while deciding the application for award
of interim compensation. It is further argued that the accused has well admitted
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the factum of taking loan from the complainant though for a different amount in
notice framed u / s 2 5 1 o f C r.P.C . It is vehemently argued that the objective
behind the introduction of the provision of Section 143A N.I. Act by the
Legislature is to reduce the undue delay in disposal of cheque dishonour cases
and to pay the interim compensation to the complainant.
2. Per contra, learned counsel for the accused in his reply to the application
moved by the complainant, has argued that the accused has not pleaded guilty and
has claimed trial. It is argued that the complainant has filed an application seeking
20% of the amount of cheques ie. 20% of Rs. 10 lakhs whereas the admitted
liability of the accused is only of Rs. 1 lakh i.e. not even 10% of the amount
claimed by the complainant in her complaint. It is further contended that the
accused is a poor person and is not in a position to pay any interim compensation
in advance, without even being convicted by the court. It is further contended that
the present case is not a fit case for grant of interim compensation in the facts and
circumstances mentioned in the complaint. It is further argued that Section 143 A
of NI Act is directive and is not mandatory. It is also stated that the cheque(s) in
question are given as security cheques and hence the complaint as well as the
present application is not maintainable.
3. Application of the complainant and reply of the accused is perused.
Considered.
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Submissions heard. File perused. Before proceeding to decide the relief u/s 143A
N.I.Act. a reference be made to the section.
143A. Power to direct interim compensation. (1) Notwithstanding anything
contained in the Code of Criminal Procedure, 1973 (2 of 1974), the Court
trying an offence under section 138 may order the drawer of the cheque to
pay interim compensation to the complainant
(a) in a summary trial or a summons case, where he pleads not guilty to
the accusation made in the complaint; and
(b) in any other case, upon framing of charge.
(2) The interim compensation under subsection (1) shall not exceed twenty
per cent of the amount of the cheque.
(3) The interim compensation shall be paid within sixty days from the date
of the order under subsection (1), or within such further period not
exceeding thirty days as may be directed by the Court on sufficient cause
being shown by the drawer of the cheque.
(4) If the drawer of the cheque is acquitted, the Court shall direct the
complainant to repay the drawer the amount of interim compensation,
with interest at the bank rate as published by the Reserve Bank of India,
prevalent at the beginning of the relevant financial years, within sixty days
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as may be directed by the Court on sufficient cause being shown by the
complainant.
(5) The interim compensation payable under this section may be recovered
as if it were a fine under section 421 of the Code of Criminal Procedure,
1973 (2 of 1974).
(6) The amount of fine imposed under section 138 or the amount of
compensation awarded under section 357 of the Code of Criminal
Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or
recovered as interim compensation under this section. [Emphasis added]
4. It should be noted that the word “may” is used in the said provision in
place of “shall”. It shows that some discretion is vested with the Court to award
interim compensation on case tocase basis, and not in a mechanical manner in
every case where the twin requirements envisaged in the said provision are
fulfilled. At this stage, a reference may be made to the decision of the Hon’ble
Madras High Court in the case of L.G.R. Enterprises & Ors. v. P. Anbazhagan
Cr.O.P. No. 15438 of 2019, wherein it has been observed as under:
A reading of the above provision makes it clear that the Court trying an
offence under Section 138 of the Negotiable Instruments Act "may"
(emphasis supplied) order the drawer of the cheque to pay interim
compensation to the complainant. The provision itself shows that the
discretion is vested with the Trial Court to direct interim compensation
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to be paid to the complainant. It is not necessary that in all cases, the trial
Court must necessarily direct the complainant to pay interim compensation
and such a direction should be given only on a casetocase basis, by taking
into consideration the facts of each case. The legislature has intentionally
not used the word "shall", since it would have prevented the accused
persons, even in genuine cases, from defending themselves without paying
20% as interim compensation amount to the complainant. This would have
directly affected the fundamental right of an accused person to defend
himself in a criminal case. This is the reason why the legislature had
thoughtfully used the word "may" under Section 143A(1) of the
Negotiable Instruments Act. Therefore, it is not possible to read the word
"shall" into the word "may" which is used in the provision. In view of the
above finding, the word "may", gives the discretion to the Trial Court to
direct the accused to pay interim compensation to the complainant. The
exercise of discretion must always be supported by reasons, failing
which the exercise of discretion will become arbitrary. [Emphasis added].
5. Similarly, the Hon’ble High Court of Delhi has also held that section 143A
of NI Act is discretionary in nature (JSB Cargo and Freight Forwarder (P) Ltd.
v. State, 2021 SCC OnLine Del 5425). This discretion, as highlighted above by
the Hon’ble Madras High Court and the Hon’ble High Court of Delhi, must be
exercised on caseto case basis by the court in light of the facts and circumstances
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of each case. Legislative intention must be kept in mind by the court while
granting interim compensation. The interim compensation cannot be granted
mechanically in every case. Some of the circumstances in which interim
compensation can be granted was laid down in L.G.R. Enterprises (supra), as
highlighted below:
(i) the accused person would have absconded for a longtime and thereby would
have protracted the proceedings; or
(ii)the accused person would have intentionally evaded service for a long time
and only after repeated attempts, appears before the Court; or
(iii)the enforceable debt or liability in a case, is borne out by overwhelming
materials which the accused person could not on the face of it deny; or
(iv)where the accused person accepts the debt or liability partly; or
(v) where the accused person does not cross examine the witnesses and keeps
on dragging with the proceedings by filing one petition after another.
As laid down by the Hon’ble Madras High Court, the aforesaid list is not
exhaustive and it is more illustrative as to the various circumstances under which
the trial Court will be justified in exercising its jurisdiction under Section 143A(1) of
the Act, by directing the accused person to pay the interim compensation of 20% to
the complainant.
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6. Considering the aforesaid legal principles in mind, I shall now proceed to
decide the present application.
7. It is pertinent to first consider the conduct of the accused in the present
matter till date. Perusal of the case file reveals that the accused has neither evaded
the service nor protracted the proceedings. The accused is diligently pursuing the
matter and is regularly appearing before this court on each and every possible
date of hearing. However, the notice u/s 251 of Cr.P.C was framed against the
accused on 07.03.2022 but despite given opportunities accused has failed to
move an application under Section 145 (2) of NI Act on time and finally the
request to cross-examine the complainant was allowed by the court orally vide
order dated 08.02.2023. Therefore, it can be said that through his conduct
accused has delayed the trial.
8. Further, accused in his defence recorded u/s 251 Cr.P.C has admitted that he
had borrowed Rs. 1 lakh from the complainant. Therefore it can be said that the
accused has admitted the debt or liability partly in his defence raised u/s 251 of
Cr.P.C
9. After considering the aforesaid plea of defense and the material on record, I
am of the considered view that from the record, it is evident that there has
been a delaying tactics adopted by the accused and there is also a partial
acknowledgment of the liability by the accused towards the complainant in
the present complaint, hence, it satisfies the test of admission of partial or
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total liability by the accused , as laid down by the Hon’ble Madras High
Court.
10. In view of the above, this court is of the considered view that there is prima
facie material (at this stage) for allowing the application u/s 143A N. I. Act in
favour of the complainant. Therefore, this Court deems it fit to award an interim
compensation to an extent of 10% of the cheques amount ie. Rs. 1,00,000/-.
Accordingly, the accused is directed to pay an amount of Rs. 1 , 0 0 , 0 0 0 /-
to the complainant within 60 days from today. In case of acquittal of the
accused, the amount paid as interim compensation shall be recoverable in terms
of 143A (4) N.I. Act.
11. Having said that, it is made clear that this order shall have no bearing on
the merits of the complaint, since the complaint has been judged only on a
prima facie basis at this stage.
Accordingly, application is disposed off as allowed.
(HARJOT SINGH)
MM (NI Act), Digital Court-01
PHC-New Delhi-28.08.2023
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