TMI Blog2021 (12) TMI 898X X X X Extracts X X X X X X X X Extracts X X X X ..... d under Section 138 of the NI Act, 1881 on the mere invocation thereof by a complainant and thereby order in terms of Section 143A(2) thereof, the interim compensation to the tune of 20% of the amount of the cheque invoked. 52. The applicability of Section 294 of the Cr.P.C., 1973 has been made essential in all proceedings in criminal trials and undoubtedly, the proceedings under Section 138 of the NI Act, 1881 are termed to be quasi criminal in nature. The observations of the learned Trial Court to the effect that even if it be assumed that the provisions of Section 143A of the NI Act, 1881 is discretionary in nature, the Court is still clothed with the powers to grant interim compensation to the complainant after providing sufficient reasons, it is essential to observe that the award of interim compensation in terms of Section 143A of the NI Act, 1881 has to be after providing sufficient reasons and whilst taking the same into account, the determination of interim compensation directed to be paid by the petitioners herein to the extent of the maximum of 20% of the cheque amount to the complainants without even considering the submissions that have been sought to be raised by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ; 5340000/-. 4. Vide the said consolidated impugned order, the learned Trial Court on an application under Section 143A of the Negotiable Instruments Act, 1881 (hereinafter referred to as the NI Act, 1881) filed by the complainants seeking the grant of interim compensation pursuant to the accused persons having pleaded not guilty to the notice under Section 251 of the Cr.P.C., 1973 on 29.01.2021 sought the grant of interim compensation from the accused and the learned Trial Court directed vide paragraphs 16 17 of the impugned order to the effect:- 16. In the event of acquittal of the accused persons in the present cases, the complainants shall be directed to repay the amount to the accused persons with interests at the prevailing bank rate, as provided in Section 143-A(4) of the NI Act. 17. The present applications moved by the complainants seeking interim compensation stand disposed as allowed. The accused persons are jointly and severally directed to pay a consolidated amount of ₹ 26,06,400/- in the above captioned matters. In the event of any default on the part of accused to pay the amount, the complainant is at liberty to initiate appropriate proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers Act, 1938 and therefore, the present complaints are barred by law. (c) The alleged payment of ₹ 45 lakhs, by the complainants to the accused persons, is inconsistent with the alleged loan-cum-guarantee agreement. Further, the complainants have also not been able to show how the cheque amounts in question have been arrived at. (d) Debt or liability in the present case is not a legal debt or liability as the income-tax returns have not been attached. Further, the alleged loan-cum-guarantee agreement is a sham document, full of inconsistencies. (e) The complainants have not approached the Court with clean hands and the Court on this account, is mandated to entertain the defence of the accused persons. 8. The accused persons i.e. the petitioners herein also placed reliance on the verdict of the Hon ble High Court of Madras in LGR Enterprises Ors. v. P. Anbazhagan 2019 (3) MLJ (Crl) 423, a verdict dated 12.07.2019 as well as on the verdict of the Hon ble Kalaburgi Bench of the High Court of Karanataka. in case titled as Jahangir v. Sh. Farook Ahmed Razak , (Crl Pet No. 201213/20) a verdict dated 06.07.21. 9. Section 143A of the NI Act, 1881 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the pendency of proceedings, so that genuine complainants are not left waiting for years on account of undue delays and dilatory tactics of the accused. 11. Inter alia the learned Trial Court observed vide paragraphs 11 12 of its impugned order to the effect:- 11. Further, a bare perusal of Section 143-A of the NI Act reveals that, at the stage of awarding interim compensation, the Court is not required to consider the strength of defence of the accused and the same is immaterial at this stage. Although, the arguments led on behalf of the accused may seem attractive at the first blush, the same cannot be gone into by the Court, at this stage, as it would amount to a mini trial. 12. The accused persons have argued that the Court can go into the contentions made by the accused persons in the present complaints, as the complaints are themselves fraught with illegality. This Court is in respectful disagreement of this assertion. It is to pertinent to reiterate that once the Court has taken cognizance of the complaint, and issued summons to the accused, the Court can only look into the grounds raised above, by the accused, at the conclusion of trial. Going by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder, the learned Trial Court has observed to the effect:- 14. Arguendo, going by the submissions of the accused, if it is assumed that Section 143-A of NI Act is discretionary in nature, the Court is still clothed with the powers to grant interim compensation to the complainant, after providing sufficient reasons. In the present complaint, the Court finds it appropriate to exercise its discretion in favour of the complainants, for the reasons which will be discussed now. It is admitted by the parties that the complainants and accused no. 2 and 3 are relatives. Moreover, it is not uncommon that relatives lend money to another relatives in cases of genuine need and such lending / grant of loan, does not attract the vires of Punjab Money Lenders Registration Act, 1938. Moreover, it needs to be acknowledged that efforts were made by the complainant towards settling the above matters in Mediation on three occasions, but the same could not bear fruit, on account of the delay tactics of the accused persons. As per the mandate of Section 143(3) of the Negotiable Instruments Act, the Court shall attempt to dispose of the cases, within six months. However, in the present complaints, m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s have further submitted that the learned Trial Court could have directed the respondent no.2 to file their bank statements and income tax returns to show the outstanding amount due against the petitioners and that the learned Trial Court acted as a mute spectator assuming that on an application under Section 143A of the NI Act, 1881, the Magistrate was only required to direct payment of 20% interim compensation and nothing else. 17. Inter alia the petitioners contend that the learned Trial Court failed to consider that the words used in Section 143A of the NI Act, 1881 to the effect that the interim compensation under sub Section (1) shall not exceed 20% of the amount of the cheque, are not similar or identical to the words used in Section 148 of the NI Act, 1881 to the effect that the Appellate Court may order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the learned Trial Court in the case of an appeal by an accused and thus, thereby, it was apparent that the legislature in its wisdom had deliberately made the difference in the wordings that it shall not exceed 20% as compared with it shall be a minimum of 20% to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be wrong which could have been considered by the learned Trial Court and in such eventuality, no interim compensation ought to have been granted by the learned Trial Court to the complainant. 20. Inter alia the petitioners submit that the learned Trial Court failed to take into account the factum that proceedings under the NI Act, 1881 are not purely criminal proceedings and have a semblance of a civil nature to it, in as much as, the accused is required to disclose its defence before the start of the trial and interim compensation can also now be awarded and that thus, therefore it was incumbent on the Trial Court to find out whether the amounts were due to the complainant having regard to the averments of the complainant as also the averments in the documents relied upon on behalf of the accused. It was also submitted on behalf of the petitioners that the intent behind insertion of Section 143A of the NI Act, 1881 could never have been to the effect that all cases filed under the NI Act be treated alike, in as much as, each case is bound to differ and therefore, exercise of discretion by the Trial Court in necessary especially when such discretion has not been taken away by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l amount thus became payable by Vinod Tondak and Kunti Devi arrayed as petitioner nos.2 3 to both petitions worked out to ₹ 2781627.21, in reality the amount paid by the petitioner nos.1 2 to the respondent and his wife after 01.12.2019 till 30.09.2020 was ₹ 3770000 by way of bank transfers excluding cash paid to the respondent no.2 and details of the bank statements were submitted by the petitioners to the effect:- (a) From Bank Account of Petitioner no.1 Company to the Bank Account of Mr. Suneel Suryavanshi /Respondent no .2 S. No. Date Amount Bank 1. 06.12.19 2,50,000/- Canara 2. 17.01.20 1,00,000/- Canara 3. 05.03.20 2,00,000/- Canara Total 5,50,000/- (b) From Bank Account of Petitioner no. 1 Company to the Bank Account of Mrs. Savita ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Amount Bank 1. 28.09.20 70,000/- Deutsche Total 70,000/- 24. The petitioners submitted further that there was no legal liability of the petitioners towards the respondent no.2, in as much as, the amount paid by them was in excess of the amount received from the respondent no.2 and his wife. The petitioners also submitted that the learned Trial Court could have called for a rejoinder from the complainant in response to the contentions and facts raised by the petitioners. The petitioners further submitted that in terms of the bank statements that have been put forth by the petitioners, an excess payment of ₹ 773540 has been paid by the petitioners to the respondent No.2 and thus, the respondent no.2 was not entitled to any compensation whatsoever. 25. The petitioners also submitted that the learned Trial Court failed to consider that in terms of Section 3 of the Punjab Registration of Money Lenders Act, 1938, lending money with interest is prohibited if the money lender is not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no.2 itself brought forth the veracity of the complainant s version as set forth through the complaint. 30. The respondents also placed reliance on the observations of the Hon ble High Court of Chattisgarh in Rajesh Soni (supra) to contend to the effect that the provisions of Section 143A of the NI Act, 1881 are mandatory. 31. Submissions were also made on behalf of the State. 32. It is essential to advert to the observations of the Hon ble High Court of Chattisgarh in Rajesh Soni (supra) wherein, it was observed vide paragraphs 9 to 19 to the effect:- 9. Before adverting to the submission made by learned counsel for the petitioner, it is expedient to see that aims and object of amended provision of Section 143A of the Act, 1881, which reads as under:- The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 138 of the Act, where he is already suffering double edged sword of loss of receivables by dishonor of the cheque and the subsequent legal costs in pursuing claim and offence. These amendments would reduce pendency in courts because of the deterrent effect on the masses along ensuring certainty of process that was very much lacking in the past, especially enforced at key stages of the proceedings under the Act. The changes brought forth by way of the 2018 amendment to the Negotiable Instruments Act, 1881 are substantial in nature and focus heavily on upholding the interests of the complainants in such proceedings. 12. From perusal of the amended provision of Section 143A of the Act, 1881, it is clear that the word may used is beneficial for the complainant because the complainant has already suffered for mass deed committed by the accused by not paying the amount, therefore, it is in the interest of the complainant as well the accused if the 20% of the cheque amount is to be paid by the accused, he may be able to utilize the same for his own purpose, whereas the accused will be in safer side as the amount is already deposited in pursuance of the order passed under Section 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ay depends on conferment of power. Depending upon the context, may does not always mean may. May is a must for enabling compliance of provision but there are cases in which, for various reasons, as soon as a person who is within the statute is entrusted with the power, it becomes [his] duty to exercise [that power]. Where the language of statute creates a duty, the special remedy is prescribed for non-performance of the duty. 20. If it appears to be the settled intention of the legislature to convey the sense of compulsion, as where an obligation is created, the use of the word may will not prevent the court from giving it the effect of Compulsion or obligation. Where the statute was passed purely in public interest and that rights of private citizens have been considerably modified and curtailed in the interests of the general development of an area or in the interests or removal of slums and unsanitary areas. Though the power is conferred upon the statutory body by the use of the word may that power must be construed as a statutory duty. Conversely, the use of the term shall may indicate the use in optional or permissive sense. Although in general sense may is enabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the original complainant or even on the application filed by the Appellant-Accused Under Section 389 of the Code of Criminal Procedure to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the Appellant. Therefore, if amended Section 148 of the N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also Section 138 of the N.I. Act. Negotiable Instruments Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of the dishonoured of cheques. So as to see that due to delay tactics by the unscrupulous drawers of the dishonoured cheques due to easy filing of the appeals and obtaining stay in the proceedings, an injustice was cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accrued thereon within two weeks from the date of this order. 16. Therefore, the word may be treated as shall and is not discretionary, but of directory in nature, therefore, the learned Judicial Magistrate First Class has rightly passed the interim compensation in favour of the complainant. 17. In L.G.R. Enterprises (Supras), the Hon'ble Madras High Court held as under:- 8. Therefore, whenever the trial Court exercises its jurisdiction under Section 143A(1) of the Act, it shall record reasons as to why it directs the accused person (drawer of the cheque) to pay the interim compensation to the complainant. The reasons may be varied. For instance, the accused person would have absconded for a longtime and thereby would have protracted the proceedings or the accused person would have intentionally evaded service for a long time and only after repeated attempts, appears before the Court, or 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 where the accused person accepts the debt or liability partly or where the accused person does not cross examine the witnesses an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers, it was observed to the effect:- 5. The next question that arises for consideration is the manner in which this provision is to be put into operation in the pending proceedings. It will be relevant to extract Section 143A(1) as follows: 143A.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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. 6. 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 to be paid by 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 case to case bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of 20% to the complainant. 9. The other reason why the order of the trial Court under Section 143A(1) of the Act, should contain reasons, is because it will always be subjected to challenge before this Court. This Court while considering the petition will only look for the reasons given by the Court below while passing the order under Section 143A(1) of the Act. An order that is subjected to appeal or revision, should always be supported by reasons. A discretionary order without reasons is, on the face of it, illegal and it will be set aside on that ground alone. 10. Keeping in mind the above discussion on the scope and purport of an order passed under Section 143A(1) of the Act, this Court will now deal with the case on hand. 11. The petitioners in the above petitions are the husband and wife and the respondent/complainant is common in both the cases. The petitioners are said to have drawn a cheque in favour of the respondent towards a legally enforceable debt and the same was dishonoured. It led to the filing of a complaint before the court below for an offence under Section 138 of the Negotiable Instruments Act. Both the cases were at the stage of cross examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ings in C.C. No. 161 of 2018 and C.C. No. 142 of 2018, within a period of three months from the date of receipt of a copy of this order. The Registry is directed to circulate a copy of this order to all the Subordinate Courts through the Judicial Academy. Consequently, connected miscellaneous petitions are closed. 34. The observations in LGR Enterprises Ors. (supra) were referred to in paragraphs 18 19 of the verdict of the Hon ble High Court of Bombay in Nurallah Kamruddi Veljee V. Farid Veljee 2019 SCC OnLine Bom 1537 with observations in paragraph 18 19 of the said verdict making reference to observations in paragraph 6 of LGR Enterprises Ors. (supra) to the effect:- 18. The learned Counsel for the petitioner has also placed reliance on the judgment of Madras High Court in the case of LGR Enterprises v. P. Anbazhagan in Cr.O.P. No. 15438 of 2019. The ratio laid down by the Single Judge of the Madras High Court would not be applicable to the case in hand since the case before the Madras High Court was in respect of Section 143A of the Act which empowers the Court to direct interim compensation while trying an offence under Section 138 of the Act. Para 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the matter is no longer res integra in view of the verdict of the Hon ble Supreme Court in Surender Singh Deswal @ Col. S.S. Deswal V. Virender Gandhi in Criminal Appeal Nos.917-944 of 2019, whereby the Hon ble Supreme Court has observed vide paragraph 9 thereof to the effect:- 9. Now so far as the submission on behalf of the appellants that even considering the language used in Section 148 of the N.I. Act as amended, the appellate Court may order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court and the word used is not shall and therefore the discretion is vested with the first appellate court to direct the appellant - accused to deposit such sum and the appellate court has construed it as mandatory, which according to the learned Senior Advocate for the appellants would be contrary to the provisions of Section 148 of the N.I. Act as amended is concerned, considering the amended Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act, the word used is m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o direct to deposit by the Appellate Court is an exception for which special reasons are to be assigned. 37. The verdict of the High Court of Karnataka Kalaburagi Bench in Jahangir Vs. Farooq Ahmed Abdul Razak in Criminal Petition no.201213/2020 dated 06.07.2021 observed vide paragraph 9 to the effect:- 9. Section 143A (1) is not a mandatory provisions and it says that Court may order the drawer of the cheque to pay the interim compensation as per conditions stipulated there under. So it is evident that the power under Section 143A is vested with the learned Magistrate to be exercised judiciously after recording the plea and it is not mandator/ but the learned magistrate is required to exercise his judicious discretion under Section 143 A of the Act. But in the present case, the impugned order disclose that the learned Magistrate has not even applied his mind and in a mechanical way as per the mandatory provisions of Section 143 A he has directed the accused to deposit 20% of the cheque amount. The provisions of Section 143 A are not mandatory but the discretion was given to the magistrate to be exercised judiciously. In the instant case though application was filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lty and, therefore, the ceiling of 20% compensation is mentioned. However, in the appeal, when the first Court holds the accused guilty and thus, once he is convicted, then, the appellate Court is given the power to pass order directing the accused to deposit the amount which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. It is further stated in Section 148 that the amount payable under this subsection shall be in addition to any interim compensation paid by the appellant under Section 143A. 15. It is useful to compare the two sections i.e., 143-A and 148 of the Negotiable Instruments Act in a tabular format to get a quick grasp. The grant of interim relief is a common thread running through both the sections. However, they are not identical. The terms and clauses used by the Legislature while drafting these two sections, provide internal aid to understand the sections. Sr.No. Section 143-A of the N.I. Act Section 148 of the N.I. Act 1. The order of payment of interim compensation. The order of depositing the su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Singh Deswal s case. The judgment of the Bombay High Court was delivered on 14.03.2019 whereas judgment of this Court in appellants case is dated 29.05.2019. In view of the law laid down by this Court in Surinder Singh Deswal s case decided on 29.05.2019, the judgment of Bombay High Court in Ajay Vinodchandra Shah s case cannot be said to be a good law insofar as consequences of non-compliance of condition of suspension of sentence is concerned. 22. It is further to note that even Bombay High Court while modifying the direction to deposit 25% of the amount of total compensation directed the accused to deposit 20% of the amount of compensation within 90 days. Thus, it is only the observations in paragraph 25 of Ajay Vinodchandra Shah Vs State of Maharasthra Anr. (supra) which read to the effect:- 25. Thus, the condition imposed at the time of pending appeal of the payment of the amount of compensation should not curtail the liberty of the appellant/accused. Such condition if not fulfilled, then, amount is recoverable finally, if the conviction is maintained. The amount can be recoverable with interest. If conviction is confirmed, the order of a higher rate of int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard must be had to the context of the said matter and the object of the provision and use of the word shall or may is not decisive. If a statutory remedy is provided for violation of the said provision then it can be construed as a mandatory provision as laid down by the Hon ble Supreme Court in State of U.P. And Others Vs. Babu Ram Upadhya AIR 1961 SC 751. 42. It is essential to observe that as stated in Craies on Statute Law, 5th edition, at page 242 : No universal rule can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the Legislature by carefully attending to the whole scope of the statute to be construed. As to whether the statute is mandatory or directory depends upon the intent of the legislature and not always upon the language in which the intent is couched. 43. The difference between the provisions of Section 143A and 148 of the NI Act, 1881 has already been spelt out elsewhere hereinabove as detailed in the verdict of the Hon ble High Court of Bombay in Ajay Vinodchandr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realize the value of the cheque. Such delays compromise the sanctity of cheque transactions. 2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy. 3. It is, therefore, proposed to introduce the Negotiable Instruments (Amendment) Bill, 2017 to provide, inter alia, for the following, namely:- (i) to insert a new section 143A in the said Act to provide that the Court trying an offence under section 138, may order the drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summons case, where he pleads not guilty to the accusation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase upon framing of charge and that the interim compensation so payable shall be such sum not exceeding 20% of the amount of the cheque and vide the said Negotiable Instruments (Amendment) Bill, 2017, Section 148 was sought to be inserted into the Act to provide an appeal by the drawer against conviction under Section 138 of the NI Act, 1881 where the Appellate Court may order the appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the Trial Court. 45. The Statement of Objects and Reasons for introduction of Section 143A and 148 of the NI Act, 1881 vide the Negotiable Instruments (Amendment) Bill, 2017 is as under:- STATEMENT OF OBJECTS AND REASONS The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is beca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amount to a mini trial, it is essential to observe that the provisions of Section 294 of the Cr.P.C., 1973 apply to all proceedings before any Court where the Code of Criminal Procedure, 1973 is applicable. Section 294 of the Cr.P.C., 1973 provides to the effect:- 294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document. (2) The list of documents shall be in such form as may be prescribed by the State Government. (3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed: Provided that the Court may, in its discretion, require such signature to be proved. 47. Furthermore, as laid down by the Division Bench of this Court in Dayawati Vs. Yogesh Kumar Gosain in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led upon to admit or deny the genuineness of each such document (3) where the genuineness of any document is not disputed, such document may be read in evidence in any enquiry; trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed provided that the Court may, in its discretion, require such signature to be proved. Lower Court Record reveals that the complainant through his lawyer by firisti i.e. list of documents dated 6.3.99 presented in Court some of the documents including the original cheques as well as bank endorsement, postal A/D Card, etc. The original cheques are lying in case record which were filed along with list of documents on 6.3.99. P.W. 1 was examined on 6.3.99. The order sheet of the learned Magistrate dated 6.3.99 does not reveal that the accused or his lawyer questioned genuineness of the documents filed by the complainant in Court on 6.3.99. The learned Magistrate by his order did not reveal that the said cheques or other documents filed on 6.3.99 requires proof of signature. It is clear, therefore, the learned Magistrate did not at all follow the provisions of law and was totall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocument is not required. In this behalf, it will be necessary to refer to a decision of Full Bench of this Court in the case of Shaikh Farid Hussainsab v. State of Maharashtra, 1981 Mh.L.J. 345. Paragraph 7 of the said judgment reads thus: 7. Section 294 of the Code is introduced to dispense with this avoidable waste of time and facilitate removal of such obstruction in the speedy trial. The accused is now enabled to waive the said right and save the time. This is a new provision having no corresponding provision in the repealed Code of Criminal Procedure. It requires the prosecutor or the accused, as the case may be, to admit or deny the genuineness of the documents sought to be relied against him at the outset in writing. On his admitting or indicating no dispute as to genuineness, the Court is authorised to dispense with its formal proof thereof. In fact after indication of no dispute as to the genuineness, proof of documents is reduced to a sheer empty formality. The section is obviously aimed at undoing the judicial view by legislative process. (Emphasis supplied) 14. The issue before the Full Bench was answered in paragraph 18 which reads thus: 18. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial Court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment. If the Court finds at the final stage that the objection so raised is sustainable the Judge or Magistrate can keep such evidence excluded from consideration. In our view there is no illegality in adopting such a course. However, we make it clear that if the objection relates to deficiency of stamp duty of a document the Court has to decide the objection before proceeding further. For all other objections the procedure suggested above can be followed. 14. The above procedure, if followed, will have two advantages. First is that the time in the trial Court, during evidence taking stage, would not be wasted on account of raising such objections and the Court can continue to examine the witnesses. The witnesses need not wait for long hours, if not days. Second is that the superior Court, when the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Practice, 2021, it has been observed in Chapter V Miscellaneous Directions No.19 (i), directions for expeditious trial to the effect:- 19.DIRECTIONS FOR EXPEDITIOUS TRIAL i. In every enquiry or trial, the proceedings shall be held as expeditiously as possible, and, in particular, when the examination of witnesses has once begun, the same shall be continued from day to day until all the witnesses in attendance have been examined, unless the court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. (section 309 (1) Cr.PC.). For this purpose, at the commencement, and immediately after framing charge, the court shall hold a scheduling hearing, to ascertain and fix consecutive dates for recording of evidence, regard being had to whether the witnesses are material, or eyewitnesses, or formal witnesses or are experts. The court then shall draw up a schedule indicating the consecutive dates, when witnesses would be examined; it is open to schedule recording of a set of witness depositions on one date, and on the next date, other sets, and so on. The court shall also, before commencement of trial, ascertain if the parties wish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereof, the impugned order dated 21.09.2021 of the learned Metropolitan Magistrate (NI Act), Digital Court-01, PHC/New Delhi in CC No.CC NI Act 12-20 titled as SAVITA SURYAVANSHI Vs. M/S JSB CARGO AND FREIGHT FORWARDER PVT LTD and in CC No.CC NI Act 100-20 titled as SUNEEL SURYAVANSHI Vs. M/S JSB CARGO AND FREIGHT FORWARDER PVT LTD is set aside with the matter being remanded back to the learned Trial Court to dispose of the application under Section 143A of the NI Act, 1881 filed by the complainants of the said complaint cases seeking interim compensation from the accused after invocation of Section 294 of the Cr.P.C., 1973 and considering the submissions that are made by the petitioner in response to the applications under Section 143A of the NI Act, 1881 and taking into account that vide this verdict it is categorically held to the effect that the provision of Section 143A of the NI Act, 1881 is directory in nature and not mandatory. 55. The learned Trial Court shall however dispose of the application under Section 143A of the NI Act, 1881 within a period of 30 days from the receipt of this order. 56. The petitions CRL.M.C.2663/2021 and CRL.M.C.2730/2021 are disposed of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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