Order 1

Order Details: Order Below EX 1
Pdf Text: MHMM180024052023
Summary Cases/5800236/2023
Sanjay Sakharam Kadam Vs. Manesh Chandu
Durkar
IN THE COURT OF METROPOLITAN MAGISTRATE, 58TH COURT,
BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.23
1. This is an application for an interim compensation
u/sec.143-A of the Negotiable Instrument Act.
2. It is contended on behalf of the complainant that accused
ha appeared in the proceeding and as such liable to pay interim
compensation of 20% of the cheque amount.
3. The accused has strongly objected vide reply Exh.24.
According to accused the complainant has filed Civil Suit against the
accused before the Small Causes Court, Bandra, wherein the accused is
restrained from obtaining possession. In short, the legal liability to
refund the security deposit of Rs.10 lakhs would arise when the
complainant gives possession and vacated the premises.
4. Complainant has came with the case of giving the cheques
in question for Rs.3 lakhs and Rs.6 lakhs in another case bearing
C.C.No.237/SC/2023 totalling to Rs.9 lakhs against the refund of
security deposit paid by the complainant to the accused. In short, as
the accused failed to return the amount of deposit, he has to knock the
door of the Criminal Court as well as Civil Court.
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5. Ld. Advocate for the accused vehemently submitted that
the legal liability to pay the cheques amount in both cases or refund of
said security deposit of Rs.10 lakhs would arises only when the accused
vacates the premises.
6. It is true that accused is restrained from disturbing
possession of the complainant/plaintiff vide interim injunction order
dated 20.10.2022 passed by Hon’ble Small Causes Court, Bandra in
L.D.Suit No.84/2022. However, that does not mean that the legal
liability to refund the security deposit would arises after vacating the
premises. The complainant has every right to approach before the Civil
Court in protection of his rights and at the same time he can adopt the
remedy of criminal nature simultaneously. Both rights and remedies are
distinct. Herein the case, the statutory right is accrued by way of
dishonour of the cheque issued by the accused and which would
presume to be issued against legal liability. Therefore, the submission
made on behalf of the accused that liability does not exists unless the
premises is vacated appears baseless and ill-legal.
7. The accused has not denied issuing subject cheques in both
cases. Both cheques are pertaining to the account of accused given
under his signature. The same are dishonoured and returned unpaid.
Therefore, the accused was called upon to make the cheque payment
vide statutory notice to be served under section 138(b) of Negotiable
Instrument Act. Therefore, prima facie circle of essential elements to
attract the criminal liability under section 138 of the Negotiable
Instrument Act is completed. The cause of action for initiating present
proceeding has arose by the act of dishonour of the cheques as well as
non compliance of the mandatory statutory notice. Therefore, the
complainant has made out strong prima facie case entitling him to
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grant interim compensation under section 143-A of the Act.
8. Ld. Advocate for the accused relied upon the Judgments in
the case laid down by Apex Court in the case of Rakesh Rajan Shrivastava
Vs. The State of Jharkhand & Anr. Reported in (2024) 3 S.C.R. 438,
wherein the parameters given are as follows:
“19.(c) The broad parameters for exercising the discretion
under Section 143A are as follows:
i. The Court will have to prima facie evaluate the merits of
the case made out by the complainant and the merits of the
defence pleaded by the accused in the reply to the application.
The financial distress of the accused can also be a consideration.
ii. A direction to pay interim compensation can be issued,
only if the complainant makes out a prima facie case.
iii. If the defence of the accused is found to be prima facie
plausible, the Court may exercise discretion in refusing to grant
interim compensation.
iv. If the Court concludes that a case is made out to grant
interim compensation, it will also have to apply its mind to the
quantum of interim compensation to be granted. While doing
so, the Court will have to consider several factors such as the
nature of the transaction, the relationship, if any, between the
accused and the complainant, etc.
v. There could be several other relevant factors in the
peculiar facts of a given case, which can not be exhaustively
stated. The parameters stated above are not exhaustive.”
9. I have gone through the ratio laid down by the Hon’ble
Apex Court in the case cited supra. Even the Hon’ble Apex Court is
held in the case cited supra that the order of interim compensation has
to be granted on considering the prima facie evidence on record. The
complainant herein the case in hand is holder in due course of the
subject cheque belonging to the accused. The cheques are not merely a
piece of paper to be adjudicated on the fiscal issues of adopting civil
remedy.
10. As stated above, the complainant can adopt both legal
remedies for protecting his legal right. Therefore, with due respect to
the ratio laid down in the case cited supra, the same would not be
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helpful for accepting the contention of the accused that no such legal
liability existed against the subject cheques. The defence of the accused
does not appear plausible. The complainant has good case to succeed
during the trial. The trial will take its own time to finalized the rights
of the parties. This is a fit case to invoke the powers conferred upon
this court under section 143-A of the Negotiable Instrument Act to
grant interim compensation to the complainant. Both issues that is
issue of non vacating the premises and no legal liability will not be a
legal obstacle in passing order under section 143-A of The Negotiable
Instrument Act. Hence, I pass following order.
O R D E R
1) The application is allowed.
2) The accused is directed to make payment of 20%
of cheque amount within 30 days to the
complainant as an interim compensation.
3) Order be uploaded on CIS.
4) Order dictated and pronounced in open court.
( M. P. Saraf )
Judicial Magistrate, First Class,
Date : 22.10.2024 58th Court, Bandra, Mumbai.
J.O.Code: MH01362
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CERTIFICATE
I affirm that the contents of this P.D.F. file Order are same, word to word as per the
original Order.
Name of Stenographer : Mrs. Aditi Ravikiran Dalvi
Court : Judicial Magistrate (First Class), 58th Court,
Bandra, Mumbai.
Dictated in open court on : 22.10.2024
Transcribed and Typed on : 22.10.2024
Order printed and Signed on : 22.10.2024
Order Uploaded on : 22.10.2024
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