Interim Order 1

Order Details: Order
Pdf Text: 1
C.C.No.4716/SS/2018
Mr. Vinayak Namdev Koli V/s. Miss. Satya Hussainappa Kudran and Ors.,
ORDER BLEOW EXH.NO.14
(Passed on 10/07/2023)
1. The complainant filed this application under section 143(A) of
the Negotiable Instruments (Amendment) Act 2018 and thereby sought the
interim compensation @ 20% of the cheque amount on the ground that the
complainant suffered monitory loss due to the act committed by the accused
persons.
2. Per contra, the accused no.1 opposed the application by filing
the say. The accused no.1 took a stand that the application is misconceived
and perfunctory. According to the accused no.1, the applicant has not made
out the case for grant of interim compensation.
3. The accused no.2 also resisted the application on the ground
that there is no material placed on record against her and there is no nexus
between her and the alleged offence. According to her, she was not served
with the statutory demand notice and, therefore, she is not liable to pay either
the compensation or the cheque amount as prayed for it.
4. Having perused the record, I heard the learned advocates for
both the sides. Following points are formulated for my determination.
SR.
NO.
POINTS FINDINGS
1] Whether the complainant is entitled for
interim compensation during the
pendency of the trial?
Negative
2] What order? The application is rejected
as per final order.
REASONS
5. At the outside, it is pertinent to note that this is a criminal
complaint filed under Section 138 of the Negotiable Instruments Act. This is a
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summons case. It was filed on 26/11/2018. In pursuance of the process
issued under Section 204 of Cr. P.C., the accused persons appeared before the
Court. The accused no.1 did not plead guilty.
6. Section 143 (A) of the Negotiable Instruments Act empowers the
Court to order the drawer of the cheque to the interim compensation to the
complainant if the drawer pleads not guilty to the allegations made in the
complaint which is a summary trial or summons case.
7. In a case of L.G.R. Enterprises V/s. P. Anbazhagan reported
in A.I.R. online 2019 Mad.801, the Hon'ble Madras High Court held that the
word “may” as occurring in Section 143 (A) (1) of the Negotiable Instruments
Act is discretionary and it is not necessary that in all cases the trial Court must
necessarily direct the interim compensation to be paid and such direction
should be given only on a case to case based upon the facts of each case.
8. Keeping in mind the provisions of 143 (A) (1) of the Negotiable
Instruments Act and the ratio laid down in the citation supra, I proceed to
scan the documents placed on record.
9. It is settled that before filing the complaint under Section 138 of
the Negotiable Instruments Act, the statutory demand notice is required to be
issued to the concerned accused within the stipulated period. Having gone
through the record, it appears that though the present complaint came to be
filed against the accused no.2, yet the complainant had not issued the
statutory and mandatory demand notice to the accused no.2. Moreover, the
complainant has not given any satisfactory explanation in this regard.
10. Apart from this there is no whisper in the complaint regarding
the involvement of the accused no.2 in this matter. In other words, the
complainant has not levelled any allegation against the accused no.2. Had it
been the case of the complainant that the accused no.1 and 2 are jointly and
severally liable to pay the cheque amount, then the matter would have been
different. But it is not the stand of the complainant. So also the cheque in
dispute does not bears the signature of accused no.2. In such circumstances,
at this juncture, I have no hesitation to hold that there is no prima facie case
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against the accused no.2.
11. So far as the role of the accused no.1, Miss. Satya is concerned,
it appears that wife of the complainant namely Chanda had issued the
mandatory demand notice to the accused no.1 before filing the complaint. In
other words, the complainant himself had not issued the statutory and
mandatory demand notice to the accused no.1 before filing the complaint.
Had it been the case of the complainant that the accused no.1 entered into
transaction with the complainant and his wife, then one could have
understood that the complainant was empowered to initiate the legal proceed
against the accused no.1. However, there is no material document filed on
record to show that the transaction took place between the accused no.1 and
wife of the complainant on whose behalf of the statutory and mandatory
demand notice had been issued. Thus, prima facie, it appears that there are
several irregularities and lacunas in the present case on hand. In such
scenario, this Court is of humble opinion that the complainant is not entitled
to have the premium of the discretionary relief under Section 143 (A) (1) of
the Negotiable Instruments Act. Hence, I record my finding in negative for
point no.1. Resultantly, I pass the following order:
ORDER
The application is rejected.
Sd/
( Sujitkumar C. Tayde )
Date : 10.07.2023 Metropolitan Magistrate,
44th Court, Andheri, Mumbai.
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