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TMI Blog2023 (3) TMI 1532X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Case No.11782 of 2021 under Section 138 and 141 of the N.I. Act, as the cheques drawn by the accused for an amount of Rs. 4 crore, in favour of the complainant were returned unpaid on the ground "account closed". 2.1 According to the case of complainant, the applicants-accused availed a loan, under loan agreement dated 31.07.2018 and amount of Rs. 5 crore was disbursed on various dates. The loan was repayable within 12 months from the date of disbursement along with the interest. The accused have defaulted in making payment. The cheques earlier given were dishonoured and thereafter, fresh four cheques each of Rs. 1 crore issued in favour of the complainant which were again dishonoured which led to filing of criminal complaint and process was issued to the applicants-accused. The Court has recorded the plea on 13.12.2021 and matter posted for recording evidence on 17.08.2022. 2.2 The application Exh.14 was filed by the complainant under Section 143A of the N.I. Act and the same was opposed by the applicants herein by filing reply Exh.16, contending inter alia, that, the dispute is civil dispute and maliciously with dishonest intention the criminal complaint is filed; that, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d soul" of the order and are the pillars basis which the order has to be executed or acted upon. Thus, therefore, the impugned order is in violation of principle of natural justice as no any reasons were assigned by the trial Court in awarding 20% compensation to the respondent no.2; That, the interim compensation under Section 143A of the N.I. Act is not mandatory and can be granted after assigning sufficient reasons for the same and therefore, the impugned order be quashed on this ground alone. 6. Mr. Mishra, learned counsel further submitted that, while passing the order, the factual aspect and dispute raised in the reply having not been considered by the trial Court. Referring to the statement and object of insertion of Section 143A, it was submitted that, the object behind the insertion of Section 143A is to provide relief during the pendency of the proceedings so that genuine complainants are not left waiting for years on account of undue delays and dilatory tactics of the accused. On the facts on hand, the applicants have appeared in every proceedings and there was no delay on their part which facts having not been considered by the trial Court in its true perspective and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2001 (8) SCC 97), contended that, High Court while acting under Article 227, cannot exercise its power as an appellate Court and has not vested with unlimited prerogative to correct all kinds of hardships or wrong decisions made within the limits of jurisdiction of the subordinate Courts. Citing the another judgment of the Apex Court in the case of Shalini Shyam Shetty & Anr vs. Rajendra Shankar Patil (2010 8 SCC 329) to submit that, in exercise of its powers of superintendence, High Court cannot interfere with mere errors of law or fact or just because another view then the one taken by the Courts subordinate to it, is a possible view. Thus, therefore, he urged that, in the present case, the Court below has passed the impugned order considering contentions raised by respective parties, and after considering the contents of the complaint and reply of the accused-applicants and provision of Section 143A and therefore, at this stage, no any exceptional circumstances exist to exercise extraordinary jurisdiction, warranting interference by this Court. 11. Heard learned counsel for the respective parties. Perused the impugned order and material placed on record. 12. Before adverting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dure, 1973, (2 of 1974) shall be reduced by the amount paid or recovered as interim compensation under this section.'' 14. A bare perusal of the aforesaid provision makes it clear that, the trial Court may order the drawer of the cheque to pay interim compensation to the complainant. Admittedly, the Delhi Court in case of M/s. Jsb Cargo and Freight Forwarder Pvt. Ltd. (CRL.MC. 2663 of 2021) decided on 20.12.2021, held that, the provision of Section 143A N.I. Act essentially a directory and cannot be termed as mandatory in nature. Even, the Karnataka High Court in Criminal Petition No.100261/2022 (Vijaya vs. Shekharappa & Anr.) decided on 17.02.2022 reported in 2022 Live Law (Kar) 82 has also taken similar view. Thus, the section is directory in nature and considering the words "may" the provision itself shows that discretion is vested with trial Court to direct interim compensation to be paid by the accused and same shall not exceed 20% of amount of cheque. 15. It is settled position of law that, when there is a discretionary power, the Court has to exercise it by assigning proper reasons of the conclusion, failing which the exercise of discretion will become arbitrary. 16. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed person to pay the interim compensation to the complainant. There is no straight jacket formula for assigning reasons, but it may vary case to case and depends upon facts of each case. The Bench of Madras High Court in the case of L G R Enterprises Sindu @ Lakshmi; V Mahadevan Iyer Vs. P Anbazhagan [2019 LawSuit (Mad) 899], in para-8 of the judgment, gave some illustration and/or example on the aforesaid subject which reads thus: "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 doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sustainable in the eye of law. 21. The contentions raised by learned counsel for the applicants do not require to discuss in detail as the quashing petition against the filing of complaint, is pending before Coordinate Bench of this Court wherein all the contentions as raised herein above with regard to issuance of process having been raised by the applicants. Even otherwise, while determining the interim compensation, it is not desirable by the trial Court to deal with the question of disputed facts and defense, as it is the subject of trial proceedings. 22. The contention raised by learned counsel for the respondent no.2 that the petition in the present form is not maintainable, is not acceptable. There cannot be any dispute with regard to law laid down by the Apex Court in the cited judgments, but fact remains that the questions raised in the cited judgments were pertaining to power to be exercised under supervisory jurisdiction under Article 227 of the Constitution of India, whereas in the present case, the petition has been filed under Article 226 of the Constitution of India. 23. For the foregoing reasons, the impugned order dated 13.04.2022 is quashed and the matter is re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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