Order 2

Order Details: Order
Pdf Text: IN THE COURT OF METROPOLITAN MAGISTRATE
44TH COURT, ANDHERI, MUMBAI.
C.C.No.3679/SS/2018
Mr. Raju Satyanarayan Sharma, …. Complainant
V/s.
M/s. Balaji Jewellers and Money Lenders
and Ors., …. Accused
ORDER ON EXH.NO.24
By way of this application, the complainant who filed the
complaint under section 138 of the Negotiable Instruments Act, has
prayed to pass an order under section 421 of the Code of Criminal
Procedure against the accused on account of his failure to comply the
order passed by this Court under section 143 (A) of the Negotiable
Instruments Act.
2. According to the complainant, this Court allowed the
application filed by the complainant under Section 143 (A) of the
Negotiable Instruments Act on 23/06/2022 and thereby directed the
accused to pay/deposit 20% of the cheque amount as the compensation
within 60 days from the date of the order. The complainant further
alleges that in spite of having the knowledge about the said order, the
accused deliberately avoided to obey it.
3. It is further pleaded that the complainant is in need of
money, but the accused intentionally and willfully committed default by
disobeying the directions given by this Court in the said order
dt.23/06/2022. Thus, in short, according to the complainant, the
accused fails to pay the amount of interim compensation within the
stipulated period and, therefore, the accused is required to be
imprisoned for noncompliance of the said order.
-- 1 of 6 --
4. The learned advocate for the accused resisted the
application by way of filing the reply and has taken a stand that instead
of adducing the evidence, the complainant filed this application to delay
the trial deliberately. It is the stand of the accused that the case is
based on bogus transaction and therefore, the order regarding the
imprisonment of accused is not justified.
5. The learned advocate for the complainant, vehemently
argued that the accused used to get the warrant cancelled and did not
obey the order passed by this Court. Hence, according to him, in order
to maintain the sanctity of the order, the accused is required to be kept
in Jail so that he shall understand the consequences of disobedience of
the order. Per contra, the learned advocate for the accused submitted
that unless and until the due procedure is followed, the accused cannot
be imprisoned.
6. Having heard the learned advocates for both the parties, I
perused the record. Following points are formulated for my
determination:
Sr.
No.
POINTS FINDINGS
1 Whether the complainant is entitled to
initiate the proceeding against the accused
for imprisonment due to disobedience of the
order passed under section 143 (A) of the
Negotiable Instruments Act?
In affirmative
2 What order? The application is
partly allowed as
per final order.
REASONS
AS TO POINT NO.1.
7. At the outset, it is pertinent to note here that the learned
-- 2 of 6 --
predecessor of this Court passed the order under section 143 (A) (1) of
the Negotiable Instruments Act and thereby ordered that 20% of the
cheque amount be made over by the accused to the complainant as
interim compensation. But the record shows that the accused failed to
comply the said order. In such scenario, before embarking upon the
conclusion, it is necessary to have a glance at the provisions of section
143 (A) of the Negotiable Instruments Act which was inserted in the Act
by Amendment Act 20 of 2018 with effect from 01/09/2018. This
section reads as under:
143 A. 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 to 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 from the date of the order, or
within such further period not exceeding thirty days 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).
-- 3 of 6 --
(6) The amount of the 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”.
8. In the present case on hand, it is evident that the learned
Predecessor of this Court awarded the interim compensation under
section 143 (A) of the Negotiable Instruments Act on 23/06/2022. So
also it is admitted position that the accused has not deposited the said
amount till passing this order. In such circumstances, in view of sub
section (5) of section 143 (A), the interim compensation may be
recovered as it were fine under section 421 of the Code of Criminal
Procedure. So let us have a glance at the provision of section 421 of the
Code of Criminal Procedure.
“421. Warrant for levy of fine
(1) When an offender has been sentenced to pay a fine, the Court
passing the sentence may take action for the recovery of the fine in
either or both of the following ways, that is to say, it may
(a) issue a warrant for the levy of the amount by attachment
and sale of any movable property belonging to the offender;
(b) issue a warrant to the Collector of the district, authorising
him to realise the amount as arrears of land revenue from
the movable or immovable property, or both, of the
defaulter.
Provided that, if the sentence directs that in default of payment of
the fine, the offender shall be imprisoned, and if such offender has
undergone the whole of such imprisonment in default, no Court
shall issue such warrant unless, for special reasons to be recorded
in writing, it considers it necessary so to do, or unless it has made
an order for the payment of expenses or compensation out of the
fine under section 357.
(2) The State Government may make rules regulating the manner in
which warrants under clause (a) of subsection (1) are to be
executed, and for the summary determination of any claims made
by any person other than the offender in respect of any property
attached in execution of such warrant.
-- 4 of 6 --
(3) Where the Court issues a warrant to the Collector under clause (b)
of subsection (1), the Collector shall realise the amount in
accordance with the law relating to recovery of arrears of land
revenue, as if such warrant were a certificate issued under such
law:
Provided that no such warrant shall be executed by the arrest or
detention in prison of the offender.”
9. In fact, the Hon'ble Apex Court has dealt with the issue
which is involved in the present case on hand. In other words, the
Hon'ble Apex Court has laid down the guidelines in the case of G. J.
Raja V/s. Tejraj Surana (Criminal Appeal No.1160/2019) in respect of
the procedure to be adopted if the accused fails to pay the interim
compensation awarded under section 143 (A) of the Negotiable
Instruments Act. In this citation, the Hon'ble Supreme Court of India
held as under:
“It is thus clear that in case an accused, against whom an
order to pay interim compensation under section 143 A of the Act is
passed, fails or is unable to pay the amount of interim compensation, the
process under section 421 can be taken resort to which may interalia
result in coercive action of recovery of the amount of interim compensation
as if the amount represented the arrears of land revenue. The extent and
rigor of the procedure prescribed for such recovery may vary from State to
State but invariably, such procedure may visit the person concerned with
coercive methods”. (Para 12)
“For instance, by virtue or section 183 of the Maharashtra
Land Revenue Code, 1966, in case there be a default in payment of land
revenue, the person concerned could be arrested and detained in custody
for 10 days in the office of the Collector or of a Tehsildar unless the
arrears of revenue which were due, were paid along with the penalty or
interest and the cost of arrest and of the notice of demand as also the cost
-- 5 of 6 --
of his subsistence during detention”.(Para 13)
10. Having regard to the ratio laid down in the citation supra,
this Court is of humble opinion that the complainant is entitled to
initiate the proceeding for recovery of the interim compensation as
contemplated under section 421 of the Code of Criminal Procedure.
Resultantly, I record my finding in affirmative for point No.1.
11. Having gone through the record, it appears that the
accused resides in Unit No.7, Madras Pada, R. A. Milk Colony, Goregaon
(E), Mumbai. This area comes within the jurisdiction of District
Collector Borivali. Hence, having regard to the residence of the
accused, I pass the following order:
ORDER
1 The application is partly allowed
2 The District Collector Borivali is hereby authorised to initiate
the recovery proceeding of the interim compensation amount
of Rs.80,000/ (Rupees Eighty Thousand Only) i.e. 20%
amount of the total cheque amount against the accused as per
section 183 of Maharashtra Land Revenue Court.
3 The District Collector – Borivali, shall submit the report
regarding the compliance of this order to this Court.
4 The office Superintendent of this Court is hereby directed to
intimate the order to the District Collector Borivali.
Sd/
( Sujitkumar C. Tayde )
Metropolitan Magistrate,
Date : 15.12.2023 44th Court, Andheri, Mumbai.
-- 6 of 6 --