Order 2

Order Details: Order Below EX 1
Pdf Text: MHMM180119062022
Summary Cases/5800781/2022
NAHID YUSUF MOHD. KHAN Vs. SHAISTA SIRAAJ QURESHI
IN THE COURT OF JUDICIAL MAGISTRATE (FIRST CLASS),
58TH COURT, BANDRA, MUMBAI
ORDER BELOW APPLICATION EXH.33
This is an application for modification of interim order passed
under section 143 of the Act.
2. It is contended on behalf of accused that he had already paid Rs.83
lakhs after date of dishonor of the cheques to the complainant. Now on
the basis of cheques, complainant has claimed an interim compensation of
Rs.26 lakhs which is not justifiable. In short, accused has disputed the
actual liability and in that context claimed modification of order.
3. Complainant objected the application vide detailed reply Exh.34.
4. Heard both sides.
5. Perused proceeding and documents relied by the complainant.
Statutory notice issued under section 138(b) of the Act by the
complainant indicates total liability of Rs.2 Crores and issuance of the
cheques in discharge of said liability. The cause of action to present
complaint arose on failure of compliance of statutory notice and demand
made therein by the complainant. Demand notice is the document germen
for further averments to be made in the complaint. Therefore, the same
being basic mandated document can not be neglected while coming to
conclusion on the point of existence of legal liability on the date of
cheques.
6. The cheques in question filed at Exh.21 and 22 are dated
31.07.2022. Cheques are dishonored on 14.09.2022 giving rise to file
present complaint. The statement made in the statutory notice clearly
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shows making payment of Rs.2 crores and further part of failure of
handing over possession of the tenanted premises. The averments indicate
cancellation of the Tenancy Agreement with resultant accrual of right of
refund of entire amount.
7. Complainant has came with a case of disputing liability of only Rs.2
Corers. According to the complainant, actual liability was more than Rs.2
crores by way of compensation for breach of an Agreement. In the
circumstances, the averments made in statutory notice appears more
important while adjudicating present application.
8. Statutory notice nowhere specifically states issuing subject two
cheques as a part and parcel of compensation on the principal sum of Rs.2
crores. The account statement produced by the accused depicts that
accused has paid Rs.70 lakhs on 11.07.2022 to the complainant. Accused
has also paid Rs.13 lakhs on 22.08.2022 to the complainant. Therefore,
there is reason to believe that complainant has received Rs.83 lakhs in
total prior to the date of date of dishonor of the cheques. Nothing is
spelled out either in statutory notice or in the complaint on record as to
receipt of Rs.83 lakhs.
9. Needless to state that complainant has made statement in para
No.10 of the complaint as to mutual Agreement on the part of amount of
Rs.2,68,00,000/- as a full and final settlement of the dispute. However,
said averment is missing in entire statutory notice which has given rise to
the complaint. Therefore, the averment made in the statutory notice will
prevail for considering existence of actual liability at this interim stage. If
it is taken into consideration, liability of only Rs.1,17,00,000/- appears
against accused. The complaint made for dishonored cheques are for
higher amount than liability without any endorsement on the cheques.
10. Now question crops up for determination whether order once
passed under section 143-A of the Act can be altered or modified by the
same court which passed it? So far as the legal aspect is concerned, the
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object of the insertion of provision will have to be taken into
consideration. The insertion of section 143-A by the amendment is purely
taking into consideration the time span of trials under section 138 of
Negotiable Instrument Act. Thereby, statute has given a faster remedy to
the aggrieved party for raising faith as to the transaction made using
negotiable instruments. If the aim and object of section 143-A is taken
into consideration, the faster remedy does not mean, in any angle
exploiting other side only on the basis of custody of the cheque and its
dishonor. For succeeding in trial existence of legal liability and its proof is
sine qua non though section 139 of the Act compels to draw the
presumption in favour of the complainant. Secondly, the provision under
section 143-A is purely discretionary to be used at the wisdom of the
court. My legal conscience says that any order which may be perverse in
law except order of taking cognizance of the criminal complaint can be
modified, altered unless there is statutory bar to do so. The Act and
provision itself gives a vide discretion to the court to pass such order of
interim compensation which is not at all mandatory.
11. In view of Judgment of Hon’ble Supreme Court in the case of
Rakesh Rajan Shrivastava Vs. The State of Jharkhand & Anr. Reported in
(2024) 3 S.C.R. 438., some directions and parameters are given for
consideration of interim application for compensation. One of the same is
making out prima facie case to succeed during the course of trial. As
stated above the question of existence of legal liability being sine qua non
for attracting criminal liability under section 138 of the Act, I deem fit to
modify the order in the interest of justice. Parties needs to be directed to
go for trial offering opportunity of putting defence by the accused. Hence,
I pass following order.
ORDER
1) The execution of order passed under section 143-A is kept
in abeyance till final conclusion of the trial.
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2) Parties to lead evidence.
3) Order dictated and pronounced in open court.
4) Order be uploaded on Court Web Portal for the knowledge
of parties.
( M. P. Saraf )
Judicial Magistrate (First Class),
Date : 09.07.2025 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 : 09.07.2025.
Transcribed and Typed on : 09.07.2025.
Order printed and Signed on : 09.07.2025.
Order Uploaded on : 10.07.2025.
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