TMI Blog2023 (6) TMI 688X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt in NOOR MOHAMMED VERSUS KHURRAM PASHA [ 2022 (8) TMI 924 - SUPREME COURT ] held that 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. Thus, in view of the present position of law as laid down, the order under revision being in accordance with law and causing no prejudice to the petitioner/accused, requires no interference by this court - Revision application dismissed. - CRR 557 of 2020 - - - Dated:- 15-6-2023 - HON BLE JUSTICE SHAMPA DUTT (PAUL) For the Petitioner : Mr. Sanat Kumar Roy, Mr. Abhishek Banerjee. For the Opposite Party/State : Mr. Manoranjan Mahata. JUDGMENT SHAMPA DUTT (PAUL), J.: 1. The present revision has been preferred against an impugned order passed by the Metropolitan Magistrate, 4th Court, Kolkata on 30.09.2019, in Case No. C-81565/18 under Section 143A of the Negotiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the N.I. Act praying for interim compensation. The said application was taken up for hearing by the Learned Magistrate on 30.09.2019. On that date the petitioner had engaged Learned Advocate Mr. Subrata Bhattacharya to conduct the case on his behalf. The learned Advocate of the petitioner sought for short time to get an instruction from his client to do the case properly for the sake of justice. Despite making such application, the Learned Magistrate did not grant any time and proceeded to hear the case accordingly. 7. The Learned Magistrate then passed an order on 30.09.2019 on the application filed by the opposite party under Section 143A of the N.I. Act for payment of interim compensation without affording reasonable opportunity of hearing to the Learned Counsel of the petitioner. The Learned Magistrate by order dated 30.09.2019 has been pleased to pass direction after hearing the Learned Counsel of the opposite party/complainant and keeping in mind the spirit of Section 143A of the N.I. Act and the intention of the legislature behind implementation of the said section that it would be just and proper if the accused/petitioner is directed to pay an interim compensation of Rs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceed 20% of the amount of the cheque; (ii) it must be paid within the time stipulated under Sub-Section (3); (iii) if the accused is acquitted, the complainant shall be directed to pay to the accused the amount of interim compensation within interest at the bank rate; (iv) the interim compensation payable under said Section can be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 ( the Code , for short); and (v) if the accused were to be convicted, the amount of fine to be imposed under Section 138 of the Act or the amount of compensation to be awarded under Section 357 of the Code would stand reduced by the amount paid or recovered as interim compensation. 10. Since Sub-Section (5) of Section 143A stipulates that the interim compensation could be recovered as it if were a fine under Section 421 of the Code, said Section 421 also needs to be considered at this stage. Section 421 appears in Chapter XXXII of the Code which Chapter deals with Execution, Suspension, Remission and Commutation of Sentences . By very context and the language of the provisions contained in the Chapter, they apply in cases where the guil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt of interim compensation, the process under Section 421 can be taken resort to which may inter alia 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. 15. The Supreme Court in Noor Mohammad vs. Khurram Pasha in Special Leave Petition (Criminal) No. 2872 of 2022 which reads as follows:- 11. Before we examine the matter in issue, we may extract the relevant provision namely Section 143A of the Act, which is to the following effect :- 143A. 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 comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 relaying on the decision of the Privy Council in Nazir Ahmad vs. King Emperir, a Bench of three Judges of this Court made the following observations in State of Utter Pradesh vs. Singhara Singh Ors. 7. In Nazir Ahmed case, 63 Ind App 372; (AIR 1936 PC 253(2)) the Judicial Committee observed that the principle applied in Taylor v. Taylor [(1875) 1 Ch D 426, 431] to a court, namely, that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all that other methods of performance are necessarily forbidden, applied to judicial officers making a record under Section 164 and, therefore, held that the Magistrate could not give oral evidence of the confession made to him which he had purported to record under Section 164 of the Code. It was said that otherwise all the precautions and safeguards laid down in Section 164 and 364, both of which had to be read together, would become of such trifling value as to be almost idle and that it would be an unn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. In Commissioner of Income Tax, Mumbai vs. Anjum M.H. Ghaswala, a Constitution Bench of this Court stated the normal rule of construction in such cases as under :- 27. Then it is to be seen that the Act requires the Board to exercise the power under Section 119 in a particular manner i.e. by way of issuance of orders, instructions and directions. These orders, instructions and directions are meant to be issued to other Income Tax Authorities for proper administration of the Act. The Commission while exercising its quasi-judicial power of arriving at a settlement under Section 245-D cannot have the administrative power of issuing directions to other Income Tax Authorities. It is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
