9911796707
TMI Blog2022 (8) TMI 924X X X X Extracts X X X X X X X X Extracts X X X X ..... ble under Section 138 of the Negotiable Instruments Act, 1881 ('the Act', for short) in the court of the Senior Civil Judge & JMFC, Nagamangala, submitting inter alia: a) A cheque dated 25.02.2019 in the sum of Rs.7,00,000/- was drawn by the Appellant in favour of the Respondent towards repayment of hand loan received by the Appellant from the Respondent. b) Said cheque was presented for encashment on 01.03.2019 but was dishonoured on account of "insufficient funds". c) Statutory notice was issued by the Respondent to the Appellant on 12.03.2019. d) However, the Appellant failed to repay the amount to the Respondent. e) Consequently, the Appellant was guilty of offence punishable under Section 138 of the Act. 4. After the cognizance of the aforesaid complaint was taken and the summons were issued, the Appellant appeared before the concerned court through his counsel on 16.08.2019. On the very same date, an order was passed by the Trial Court directing the Appellant to deposit 20% of the cheque amount as interim compensation in terms of Section 143(A) of the Act within 60 days. The period so granted, got over on 15.10.2019 and on the request of the Appellant further exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the Appellant in not depositing the interim compensation as directed, showed that he was only interested in protracting the proceedings for one reason or the other. 9. In this appeal while issuing notice to the Respondent, this Court by its Order dated 01.04.2022 directed the Appellant to deposit a sum of Rs.3,50,000/- in the Registry of this Court and the amount has since then been deposited. 10. We have heard Mr. Shailesh Madiyal, learned advocate for the Appellant and Mr. Anand Nuli, learned Advocate for the Respondent. In the submission of Mr. Madiyal, in case the order of interim compensation as directed in terms of Section 143A of the Act is not complied with, the amount can be recovered in terms of Sub-Section 5 of said Section 143A as if it were a fine under Section 421 of the Code, but it would not be within the competence of the court to deprive an accused of his right to cross-examine a witness; the denial of such right resulted in great prejudice to the Appellant and as such, the judgments and orders passed by the courts below suffered from illegality and are required to be set aside. On the other hand, Mr. Nuli submits that the orders passed by the courts below ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acquitted. Said Sub-Section 4 contemplates repayment of interim compensation along with interest as stipulated. Sub-Section 5 of said Section 143A then states "the interim compensation payable under this Section can be recovered as if it were a fine". The expression interim compensation is one which is "payable under this Section" and would thus take within its sweep the interim compensation directed to be paid under Sub-Section 1 of said Section 143A. 13. The remedy for failure to pay interim compensation as directed by the court is thus provided for by the Legislature. The method and modality of recovery of interim compensation is clearly delineated by the Legislature. It is well known principle that if a statute prescribes a method or modality for exercise of power, by necessary implication, the other methods of performance are not acceptable. While relying on the decision of the Privy Council in Nazir Ahmad vs. King Emperor AIR1936 Privy Council 253 (2), a Bench of three Judges of this Court made following observations in State of Uttar Pradesh vs. Singhara Singh and others AIR 1964 SC 358. "7. In Nazir Ahmed case, 63 Ind App 372; (AIR 1936 PC 253 (2)) the Judicial Committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the conclusion that the dismissal of the appellant from service, in utter violation of Rule 35 of the Rules, was an "act done in pursuance or execution or intended execution of this Act ...". It is no doubt correct that the General Board of the Municipality had the power under the Act to dismiss the appellant but the said power could only be exercised in the manner indicated by Rule 35 of the Rules. Admittedly the power of dismissal has not been exercised the way it was required to be done under the Act. It is settled proposition of law that a power under a statute has to be exercised in accordance with the provisions of the statute and in no other manner. In view of the categoric finding given by the High Court to the effect that the order of dismissal was on the face of it illegal and void, we have no hesitation in holding that the dismissal of the appellant was not an act done in pursuance or execution or intended execution of the Act. The order of dismissal being patently and grossly in violation of the plain provisions of the Rules. It cannot be treated to have been passed under the Act." (Emphasis supplied) In Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala (2 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
