TMI Blog2024 (2) TMI 1151X X X X Extracts X X X X X X X X Extracts X X X X ..... t revision in the Sessions Court. The power under Section 482 Cr.P.C. has to be sparingly exercised and should not be used as a substitute for a second revision albeit there can be no doubt that when there is a serious miscarriage of justice or abuse of process of the Court or where mandatory provisions of law are not complied with and when the High Court feels that the inherent jurisdiction has not been exercised correctly by the Revisional Court, it can interfere as held by the Supreme Court in Kailash Verma [ 2005 (1) TMI 406 - SUPREME COURT] . Thus, the question is whether Petitioner has made out an extraordinary case warranting interference by this Court exercising jurisdiction under Section 482 Cr.P.C. Whether the Trial Court has exercised its discretion rationally, keeping into account the facts of the case and the conduct of the Petitioner and if the exercise of discretion warrants any interference by this Court while exercising inherent powers under Section 482 Cr.P.C.? - HELD THAT:- Impugned order dated 18.08.2023 shows that the learned Magistrate has passed a reasoned order supporting the award of compensation in favour of the Respondent. Trial Court observed tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in being 20% of the amount under the cheque, which was dishonoured on presentation by the Respondent. Respondent is the Complainant and Petitioner herein is the Accused before the learned Trial Court and the parties are hereinafter referred to by their litigating status before this Court. 2. Factual matrix to the extent necessary is that a complaint was filed under Sections 138 and 142 of the Negotiable Instruments Act, 1881 ( NI Act ) through Sh. Sumit Gupta, Managing Director, GNG Stock Holding Pvt. Ltd./Respondent herein against the Petitioner Smt. Geeta Monga, in respect of cheque No. 142144 dated 11.03.2020 for Rs. 15,00,000/-, issued by the Petitioner in favour of the Respondent and which on presentation with the bank on 12.03.2020 was dishonoured vide memo dated 13.03.2020 with remarks Exceeds Arrangement . Petitioner and her husband were informed of the dishonour of the cheque, who kept on assuring that the outstanding debt will be cleared and upon their request, the cheque was again presented on 12.04.2020 but was dishonoured vide memo dated 15.04.2020 with remarks Funds Insufficient . Legal notice dated 17.06.2020 was issued by the Respondent calling upon the Petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Trial Court record as reflected from the various order sheets. It is urged that whenever adjournments were sought by the Petitioner, they were allowed by the Trial Court and therefore, today it cannot be said that the adjournments were without any basis, for the purpose of awarding interim compensation against the Petitioner. Impugned orders also overlook that Petitioner has raised a plausible defence that the cheque was never issued in favour of the Respondent by the Petitioner and there was no legally enforceable or recoverable debt towards the Respondent, justifying the award of interim compensation. The impugned orders are against the spirit of Section 143A of NI Act, which stipulates that the interim compensation shall not exceed 20% of the cheque amount but does not lay down that in all cases 20% must be awarded. There is no reasoning in the impugned orders indicating why the Trial Court awarded the maximum limit and not any lesser percentage, while exercising the discretion available to it. 6. Per contra, learned counsel for the Respondent argues that Trial Court had framed a notice under Section 251 Cr.P.C. on a prima facie case being established in favour of the Res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tate of Maharashtra, (1977) 4 SCC 551 and State of Orissa v. Ram Chander Agarwala and Others, (1979) 2 SCC 305. In Rajinder Prasad v. Bashir and Others, (2001) 8 SCC 522 , the Supreme Court held as follows:- 7. .. though the power of the High Court under Section 482 of the Code is very wide, yet the same must be exercised sparingly and cautiously, particularly in a case where the petitioner is shown to have already invoked the revisional jurisdiction under Section 397 of the Code. Only in cases where the High Court finds that there has been failure of justice or misuse of judicial mechanism or procedure, sentence or order was not correct, the High Court may, in its discretion, prevent the abuse of the process or miscarriage of justice by exercise of jurisdiction under Section 482 of the Code. It was further held: (SCC p. 248, para 10) 10. Ordinarily, when revision has been barred by Section 397(3) of the Code, a person accused/complainant cannot be allowed to take recourse to the revision to the High Court under Section 397(1) or under inherent powers of the High Court under Section 482 of the Code since it may amount to circumvention of the provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds not guilty to the accusation made in the complaint; and (b) in any other case, upon framing of charge. (2) The interim compensation under sub-section (1) 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 year, 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 Criminal Procedure Code, 1973 (2 of 1974). (6) The amount of fine imposed under Section 138 or the amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... change 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 because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. 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 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 institut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the facts of each case. The legislature has intentionally not used the word shall , since it would have prevented the accused persons, even in genuine cases, from defending themselves without paying 20% as interim compensation amount to the complainant. This would have directly affected the fundamental right of an accused person to defend himself in a criminal case. This is the reason why the legislature had thoughtfully used the word may under Section 143A(1) of the Negotiable Instruments Act. Therefore, it is not possible to read the word shall into the word may which is used in the provision. xxx xxx xxx 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 long time 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 143A was introduced providing for interim compensation to the complainant with a cap of 20% of the cheque amount. As held by the Madras High Court, discretion is vested with the Trial Court to direct interim compensation in favour of the complainant and in each case the discretion has to be exercised depending on its facts, as provision of Section 143A is directory and not mandatory. It was further observed that whenever the Trial Court exercises its jurisdiction under Section 143A(1) of NI Act, it shall record reasons as to why it is directing payment of the interim compensation to the complainant. The Court further observed that the reasons may be varied, for instance accused has absconded for a long time or evades service or the liability to pay is borne out by overwhelming material or where the accused keeps on dragging the proceedings and this list of illustrations is only illustrative. The duty of the Court to give reasons in support of award of interim compensation is reiterated by the High Court of Karnataka in Vijaya v. Shekhapappa and Another, 2022 SCC OnLine Kar 515. 14. From the impugned order dated 18.08.2023 passed by the learned Trial Court, it is discern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here there is complete co-operation from the hands of the accused in the trial, the Court may consider whether interim compensation has to be granted at all and in cases where there is no cooperation on the part of the accused, the Court may proceed to consider the application. Second fold: The second fold of discretion in any given case, the compensation may vary from 1% to 20%. It is nowhere depicted in the statute that the amount of interim compensation should be of a particular figure. It can vary from 1% to 20%. It is this variance that gives the learned Magistrate power to exercise discretion to grant such compensation. The mandate of the statute is that it should not exceed 20%. In the cases where learned Magistrate proceeds to grant compensation, has to bear in mind the amount involved in the instrument, as certain transactions would run to several cores and the accused may have formidable defence against the complainant. In such cases, the learned Magistrate should exercise discretion in a cautious manner. Here again the conduct of the accused should be noticed. Therefore, the aforesaid two fold discretion is sine qua non for an order to be passed by the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulting from delay tactics adopted by unscrupulous drawers of the dishonoured cheques. 16. Coming to the facts of this case in light of the provisions of Section 143A of the NI Act and the judgments of various Courts and this Court, it needs to be examined whether the Trial Court has exercised its discretion rationally, keeping into account the facts of the case and the conduct of the Petitioner and if the exercise of discretion warrants any interference by this Court while exercising inherent powers under Section 482 Cr.P.C. Impugned order dated 18.08.2023 shows that the learned Magistrate has passed a reasoned order supporting the award of compensation in favour of the Respondent. Trial Court observed that Petitioner has admitted her signatures on the cheque in question as well as the factum of issuance of the cheque from her account, leading to the mandatory presumptions under Sections 118A and 139 of the NI Act against her to the effect that the cheque was drawn by her for a consideration and the Respondent Company had received the same in discharge of a debt/liability, from the Petitioner. Trial Court rightly observed that the only factor which could then have come to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, proof of the fact that copy of the application had been furnished. Hard copy of the application was furnished to the counsel for the Petitioner in Court and the matter was adjourned for reply and arguments. On 31.07.2023, again adjournment was sought by the Petitioner on the ground of unavailability of her counsel. Having perused the order sheets, this Court concurs with the finding of the Trial Court that dilatory tactics were being adopted by the Petitioner by seeking repeated adjournments. The order awarding 20% of compensation also merits no interference for other reasons also, as noted by the learned Trial Court and the Revisional Court that Petitioner admitted her signatures on the cheque as well as the factum of the cheque having been issued from her account albeit the defence was that her business was primarily looked after by her husband and she had no knowledge of the cheque being issued or its dishonour, which would be a matter of trial. 19. As noticed in the earlier part of the judgment, power under Section 482 Cr.P.C. has to be exercised sparingly and not as a substitute for second revision. High Court can entertain a petition under Section 482 Cr.P.C. where the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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