TMI Blog2022 (4) TMI 1247X X X X Extracts X X X X X X X X Extracts X X X X ..... lowed the application filed by the legal heirs of the deceased to prosecute his appeal - The position of law will be, however, different in a case where the interim compensation has been granted under Section 143A of the Negotiable Instruments Act, 1881. Section 143A (1) of the Negotiable Instruments Act, 1881, speaks of payment of interim compensation. Section 143A (1) is independent of Section 143A (4) of the Negotiable Instruments Act, 1881. A bare reading of Section 143A (4) makes it clear that in the event the drawer of the cheque is acquitted, the interim compensation paid in terms of Section 143A (1) has to be repaid together with the prevalent bank interest - The order of interim compensation is, therefore, dependent on the outcome of the trial. There is no finality attached to such interim order of compensation and no right is crystallized in favour of the complainant by dint of such interim order of compensation. The order of interim compensation, which is passed in the aid of final compensation, will cease to exist when the trial comes to an end due to the death of the accused since in such eventuality there cannot be any scope to adjudicate the innocence or the guilt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and (b) as his legal heirs. 7. The order dated March 4, 2020, was affirmed by the learned Chief Judge, City Sessions Court on December 2, 2020, and thereafter the petitioner filed an application under Section 421 of the Code of Criminal Procedure, 1973 before the learned Magistrate for recovery of the interim compensation awarded by the order dated March 4, 2020. The learned Magistrate by the order impugned in this revisional application dated April 3, 2021, dismissed the petition holding, inter alia, that interim compensation awarded to the petitioner could not be executed inasmuch as criminal liability including the pecuniary penalties stood extinguished upon the death of the accused person. 8. Assailing the said order dated April 3, 2021, the learned advocate for the petitioner, Mr. Ayan Bhattacharjee with his usual eloquence elaborately argued before this Court by referring to Section 143A of the Negotiable Instruments Act, 1881, Section 421 of the Code of Criminal Procedure, 1973, and Section 70 of the Indian Penal Code, 1860. Mr. Bhattacharjee argued that by virtue of Section 25 of the General Clauses Act, 1897, the provisions of Section 63 to 70 of the Indian Penal Cod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1938) 1 Cal 509 (Tari Bala Sukla Baidya v. Kabal Ram Sukla Baidya), where it was held that cancellation of an interim maintenance does not absolve the husband to pay the arrear. 13. Mr. Sonal Anand, learned advocate appearing for the opposite parties, on the other hand, submits that the compensation passed under Section 143A is interim in nature and the same is refundable in case it is established that the accused is innocent. In case of death of an accused during the trial, the innocence of the accused cannot be, in any event, proved and therefore, the amount of compensation directed to be paid in terms of Section 143A becomes irrecoverable. 14. Mr. Anand, further, submits that the proceeding under Section 138 of the Negotiable Instruments Act abates upon the death of the accused and when the main proceeding itself abates interim order passed in connection thereof cannot survive. In support of the proposition that proceeding under Section 138 of the Negotiable Instruments Act cannot continue against the legal representatives of the drawer of the cheque and abates upon his death, Mr. Anand has relied upon the judgments rendered in (Madhu v. State of Kerala) reported at (2020) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 sub-section (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). (6) The amount of fine 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 compens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22. It is also necessary to notice Section 431 of the Code of Criminal Procedure, 1973, which provides as follows: 431. Money ordered to be paid recoverable as a fine.--Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine: Provided that section 421 shall, in its application to an order under section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of section 421, after the words and figures under section 357 , the words and figures or an order for payment of costs under section 359 had been inserted. 23. The relevant part of Section 138 of the Negotiable Instruments Act, 1881, is quoted below: 138. Dishonour of cheque for insufficiency, etc., of funds in the account.--Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de, 1860 cannot be extended to Section143A of the Negotiable Instruments Act, 1881. The expression all fines imposed under any Act ... is wide enough to include the fine imposed under Section143A of the Negotiable Instruments Act, 1881 to bring within the swipe of Section 70 of the Indian Penal Code, 1860. 29. The combined reading of the aforesaid provisions makes it clear that where the compensation has been directed to be paid upon conclusion of a proceeding under Section 138 of the Negotiable Instruments Act, 1881, the legal heirs who have inherited the estate of the deceased are liable to repay the fine or compensation amount when an application under Section 421 of the Code of Criminal Procedure, 1973, has been filed. 30. The same view has been taken in the judgment reported at (2016) 2 ABR (Cri) 191 (Shamim Saifuddin Sarkhot v. Jugraj Miyachand Jain). 31. The judgment reported at (2020) SCC OnLine Ker 2353 (Madhu v. State of Kerala) deals with an appeal against acquittal in connection with a proceeding under Section 138 of the Negotiable Instruments Act, 1881. 32. In the judgment reported at (2003) SCC OnLine Kar 434 (Smt. Girija v. K. Vinay) the Karnataka High ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
