Delhi District Court
Sh Adarsh Chaudhary vs The State Of Nct Of Delhi on 25 January, 2025
Adarsh Chaudhary Vs. The State (NCT of Delhi) & Anr.
IN THE COURT OF SH. VIJAY SHANKAR,
ADDITIONAL SESSIONS JUDGE - 04, (WEST DISTRICT)
TIS HAZARI COURTS, DELHI
CR NO.:- 156/2023
CNR NO.:- DLWT01-002360-2023
IN THE MATTER OF :-
Adarsh Chaudhary
S/o Late Sh. D.P. Chaudhary
R/o B-9/2, Ring Road, Rajouri Garden,
New Delhi-110015 .... Revisionist
VERSUS
1. The State (NCT of Delhi)
2. Ramesh Sharma
C/o M/s Sharma Kalypso Pvt. Ltd.
23, Community Centre,
Basant Lok, First Floor,
Vasant Vihar, New Delhi-110057
Also at :-
A-10/8, Vasant Vihar,
New Delhi-110057 .... Respondents
Digitally signed
by VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.01.25
17:26:29 -0200
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Date of institution of the revision petition : 15/03/2023
Date on which judgment was reserved : 09/01/2025
Date of judgment : 25/01/2025
JUDGMENT
1. By way of present judgment, this Court shall conscientiously adjudicate upon criminal revision petition under Section 397/401 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Cr.P.C.") filed by the revisionist against the order dated 11/01/2023 ('hereinafter referred to as 'impugned order') passed by Sh. Karanbir Singh, Ld. MM (NI Act-05), West District, Tis Hazari Courts, Delhi, in complaint case No. 14755/2018 titled as " Adarsh Chaudhary Vs. Ramesh Sharma & Anr.".
In the present revision petition, the revisionist has prayed to call the trial court record, to set-aside the impugned order dated 11/01/2023 passed by the Ld. Trial Court and to direct the respondent No.2/accused to pay 1/5th amount of the cheque in question i.e. Rs.2,00,000/- to the revisionist/complainant.
2. Brief facts necessary for just adjudication of the present revision petition as stated in the present revision petition are that the complainant (revisionist herein) had filed a complaint case u/s. 138 Negotiable Instruments Act (hereinafter referred to Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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as "NI Act") against the accused (respondent No.2 herein) in respect of cheque No.629474 dated 20/08/2018 amounting to Rs.10,00,000/- and the said case is pending before the Ld. Trial Court. Vide order dated 11/01/2023 passed by the Ld. Trial Court, the application u/s. 143-A NI Act of the complainant was dismissed. No other similar application/ petition has been filed by the revisionist against the impugned order before the Hon'ble High Court or any other Court.
3. The revisionist has challenged the impugned order on the grounds, as mentioned in the present revision petition.
Grounds of revision- The impugned order dated 11/01/2023 passed by the Ld. Trial Court is based on conjecture and surmises and the same is against the law as well as facts of the case. Ld. Trial Court has failed to consider that the legal notice dated 22/10/2018 issued by the complainant/ revisionist was duly served upon the respondent No.2 at his address i.e. H.No.A-10/8, Vasant Vihar, New Delhi-110057 but the respondent No.2 did not replied the same. Ld. Trial Court has ignored the complainant's story of friendly loan of Rs.10,00,000/-. Ld. Trial Court while passing the impugned order dated 11/01/2023 has wrongly mentioned that "no delay tactics have been adopted by the accused till date", which is against the record. Ld. Trial Court has issued the summons to respondent No.2 but despite service, respondent No.2 did not appear and thereafter, NBWs were Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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issued against the accused/respondent No.2. Even thereafter, exemption application of accused/ respondent No.2 was filed by his counsel as accused did not appear before the Ld. Trial Court and the Ld. Trial Court has imposed the cost of Rs.4,000/- upon the accused/respondent No.2 vide order dated 03/08/2022. Impugned order is unsustainable and unwarranted and liable to be set-aside. Ld. Trial Court has wrongly observed that in the present matter, accused has not filed any frivolous and false application to delay the present matter. Upon the service of summons, accused/ respondent No.2 did not appear and filed exemption application but the said fact was not considered and overlooked by the Ld. Trial Court. Ld. Trial Court has committed grave error while passing the impugned order and dismissing the application u/s. 143-A NI Act filed by the complainant. Ld. Trial Court has totally failed to consider that the liability of the accused/respondent No.2 is independent/exclusive towards the friendly loan of Rs.10,00,000/- taken by him from the complainant/ revisionist. Moreover, the proceeding of the present case u/s. 138 NI Act is criminal in nature, which could be continued even if proceeding, if any, with regard to any company is/was pending or going on before the NCLT. Further, case of the revisionist is of the friendly loan of Rs.10,00,000/-, which was given to the accused/ respondent No.2 and not to the company of the accused/respondent No.2. Ld. Trial Court has mixed the independent and separate liability of the accused/respondent No.2 towards the friendly loan of Rs.10,00,000/-. Case lawDigitally titled as signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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"G.J. Raja Vs. Tej Raj Surana" {7 (2019) SLT 257} was not appreciated and considered while dismissing the said application. Ld. Trial Court has wrongly relied upon the judgment as mentioned in the impugned order. Impugned order is against the well settled law and judicial pronouncements on the point involved in the present matter. Accused/respondent No.2 has failed to put forth the prima-facie defence in his favour and no document was produced/shown by the accused/respondent No.2 in his favour till date before the Ld. Trial Court. No plausible defence was shown/given by the accused/respondent No.2 in this case. Impugned order is perverse in nature and against the judicial record as well as on the law.
4. This Court heard the arguments on the present revision petition advanced by Ld. Counsel for the revisionist, Ld. Substitute Addl. PP for the State/respondent No.1 and Ld. Counsel for the respondent No.2. Perused the material available on record.
During the course of arguments, it was submitted by Ld. Counsel for the revisionist that the impugned order is not an interlocutory order and the present revision petition against the impugned order is maintainable and impugned order is liable to be set-aside on the grounds, as mentioned in the present revision petition. On the other hand, it was submitted by Ld. Counsel for the respondent No.2 that the Ld. Trial Court has passed the impugned order in accordance with law and there is no merits in Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the present revision petition and the same is liable to be dismissed.
Counsel for the revisionist in support of his contentions has relied upon following case laws:-
(1) Rakesh Ranjan Shrivastava Vs. The State of Jharkhand & Anr. {2024 (4) SCC 419} (2) Tedhi Singh Vs. Narayan Dass Mahant, {(2022) 6 SCC 735} (3) Ajay Kumar Radheyshyam Goenka Vs. Tourism Finance Corporation of India Ltd.
{CRL. Appeal No.170/2023, 171/2023 and 172/2023 decided by the Hon'ble Supreme Court of India on 15/03/2023} (4) Kalamani Tex & Another Vs. P. Balasubramanian, {(2021) 5 SCC 283} (5) Gorantla Venkateswara Rao Vs. Kolla Veera Raghava Rao & Anr. {2006 Cri. LJ 1} (6) Rangappa Vs. Mohan {AIR 2010 SC 1898} (7) General Auto Sales Vs. Vijaylakshmi D {II (2005) BC 597} (8) Rajneesh Aggarwal Vs. Amit J. Bhalla { AIR 2001 SC 518}
5. By way of present revision petition, the revisionist has challenged the order dated 11/01/2023 passed by the Ld. Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Trial Court. The impugned order is reproduced as under:-
"11.01.2023 Argued by: Sh. SK Gupta & Ms. Monika Devi, Ld. Counsel for the complainant with complainant.
Sh. Sumit Kumar, Ld. Counsel for the accused with accused.
Vide this order, I shall dispose off an application filed u/s 143A of NI Act.
1. Learned counsel for complainant has admitted that the amendment of Negotiable Instruments Act came into force on 01.09.2018. He submitted that cheque in the present case was dishonoured on 12.10.2018 and thereafter the legal notice was sent and hence the amendment is applicable to the facts of the present case as the offence was committed after the amendment came into force. He relied on the judgement of honourable Supreme Court in GG Raja versus Tej Raj Surana 7 (2019) SCT.
It was further submitted that accused did not reply to legal notice. It was submitted that costs have been imposed on the accused earlier seeing his conduct and therefore interim compensation should be awarded to the complainant.
2. On the other hand learned counsel for the accused had submitted that date of handing over of cheque is 20th August 2018 and they have re bounced the cheque. It was submitted that they cannot be allowed to take benefit of bouncing the cheque again. It was further submitted that the power to award interim compensation is discretionary under section 143A of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Negotiable Instruments Act. Ld. council for accused relied on judgement of M/s GSV Cargos and Freight versus state and another in criminal miscellaneous number 2663 of 2021 to argue that before awarding interim compensation the court has to see prime facie satisfaction, plausible defence of the accused, and economic condition of both the parties. It was submitted that the cheque in question belongs to the company which is accused number 2 in the present case and the said company is undergoing insolvency proceedings before the NCLT. It was further submitted that when the company is in NCLT, only director as accused #1 cannot be made liable without determining the liability of the company. It was further argued that no Ledger book, no books of accounts and no documents have been shown to prove the legal liability of the accused.
3. I have given my careful consideration but the arguments. Record produced.
4. Before proceeding to decide the present application, a reference be made to section 143A of the Act:
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.
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(2) The interim compensation under subsection (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 subsection (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 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 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 compensation under this section.
[Emphasis added]
5. It should be noted that the word "may" is used in the said provision in place of "shall". It shows that some discretion is vested with the Court to award interim compensation on case to case Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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basis, and not in a mechanical manner in every case where the twin requirements envisaged in the said provision are fulfilled. At this stage, a reference may be made to the decision of the Hon'ble Madras High Court in the case of L.G.R. Enterprises & Ors. v. P. Anbazhagan, Cr.O.P. No. 15438 of 2019, wherein it has been observed as under:
A reading of the above provision makes it clear that the Court trying an offence under Section 138 of the Negotiable Instruments Act "may"
(emphasis supplied) order the drawer of the cheque to pay interim compensation to the complainant. The provision itself shows that the discretion is vested with the Trial Court to direct interim compensation to be paid to the complainant. It is not necessary that in all cases, the trial Court must necessarily direct the complainant to pay interim compensation and such a direction should be given only on a case- to-case basis, by taking into consideration 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. In view of the above finding, the word "may", gives the discretion to the Trial Court to direct the accused to pay interim Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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compensation to the complainant. The exercise of discretion must always be supported by reasons, failing which the exercise of discretion will become arbitrary.
[Emphasis added]
6. Similarly, the Hon'ble Delhi High Court has also held that section 143A of NI Act is discretionary in nature (JSB Cargo and Freight Forwarder (P) Ltd. v. State, 2021 SCC OnLine Del 5425). This discretion, as highlighted above by the Hon'ble Madras High Court and the Hon'ble Delhi High Court, must be exercised on case-to-case basis by the court in light of the facts and circumstances of each case. Legislative intention must be kept in mind by the court while granting interim compensation. The interim compensation cannot be granted mechanically in every case. Some of the circumstances in which interim compensation can be granted was laid down in L.G.R. Enterprises (supra), as highlighted below:
(i) the accused person would have absconded for a longtime and thereby would have protracted the proceedings; or
(ii) the accused person would have intentionally evaded service for a long time and only after repeated attempts, appears before the Court; or
(iii) 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
(iv) where the accused person accepts the debt or liability partly; or Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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(v) where the accused person does not cross examine the witnesses and keeps on dragging with the proceedings by filing one petition after another.
As laid down by the Hon'ble Madras High Court, the aforesaid list is not exhaustive and it is more illustrative as to the various circumstances under which the trial Court will be justified in exercising its jurisdiction under Section 143A(1) of the Act, by directing the accused person to pay interim compensation of 20% to the complainant.
7. Considering the aforesaid legal principles in mind, I shall now proceed to decide the present application.
Conduct of the accused The present matter was instituted in 2018 however summoning was done only on 4th March 2022. Therefore the delay caused from 2018 to 2022 cannot be attributed to the accused person.
The accused appeared only when the NBWs were issued against him and furnished his bail bonds. Thereafter copy of complaint was applied to the accused on 26.07.2022 and it was submitted that the accused company is undergoing insolvency proceedings and a liquidator has been appointed. The exemption application moved on behalf of accused on 03.08.2022 was dismissed and accused was burdened with the cost of rupees 4000. The cost has been paid on 03.12.2022.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
2025.01.25
17:27:43 -
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Acceptance of liability by the accused/ existence of prima facie case in favour of the complainant.
It is pertinent to note that in the present matter the accused has not admitted his liability either in part or whole. The materials available on record are not so overwhelming to order interim compensation at this stage. In the present matters the accused has not filed any frivolous or false application to delay the present matter. Infact, he has already started cross examination of complainant.
8. Coming to the arguments in the present matter, it is well known that a cheque can be bounced as many times within the three months validity period of the cheque. Therefore the said argument of learned counsel for the accused that they cannot be allowed to take the benefit of the re-bouncing of the cheque is rejected. The amendment is clearly applicable to the facts of the present case. The Hon'ble SC in GG Raja versus Tej Raj Surana 7 (2019) SCT observed as follows:
22. In our view, the applicability of Section 143A of the Act must, therefore, be held to be prospective in nature and confined to cases where offences were committed after the introduction of Section 143A, in order to force an accused to pay such interim compensation.
ARGUMENT REGARDING MORATORIUM Coming to the argument of moratorium, accused has already furnished the orders of NCLT bench where in moratorium has been declared against the accused number one company. And the proceedings against accused Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date: 2025.01.25 17:27:50 -0200 CR No. 156/2023 Page No.13 of 34 Adarsh Chaudhary Vs. The State (NCT of Delhi) & Anr.
number one company have been stayed. Perusal of the record would reveal that the cheque belongs to the accused no.2 company. In view of the same ordering any interim compensation would have a significant impact on the operational creditors of accused no. 2 company. The claims of accused no.2 company and its operational creditors fall under the ambit of insolvency and Bankruptcy Code. The ordering of any interim compensation by this court would mean that court is also adjudicating on the claims which fall under insolvency and bankruptcy code. This court does not have any jurisdiction over claims falling under insolvency and bankruptcy code. The said claims are to be settled by the insolvency resolution professional.
9. Therefore, in view of this Court no delaying tactics have been adopted by the accused till date. The accused has not admitted the amount partly. In view of the facts of the case, I am not inclined to order interim compensation. Therefore, the present application is dismissed.
10. It is made clear that this order shall have no bearing on the merits of the complaint, since the parties have to prove their case as per law during the trial.
11. Application stand disposed off accordingly.
[Karanbir Singh] MM NI Act-05/(West )/Delhi 11.01.2023"
6. For the sake of ready reference, section 397 Cr.P.C. is reproduced as under:-
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Section 397:- Calling for records to exercise powers of revision: (1) The High Court or any Sessions Judge may call for and examine the record of any proceeding before any inferior Criminal Court situate within its or his local jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order, recorded or passed, and as to the regularity of any proceedings of such inferior Court, and may, when calling for such record, direct that the execution of any sentence or order be suspended, and if the accused is in confinement, that he be released on bail or on his own bond pending the examination of the record.
Explanation- All Magistrates, whether Executive or Judicial, and whether exercising original or appellate jurisdiction, shall be deemed to be inferior to the Sessions Judge for the purposes of this sub-section and of section 398.
(2) The powers of revision conferred by sub-section (1) shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding.
(3) If an application under this section has been made by any person either to the High Court or to the Sessions Judge, no further application by the same person shall be entertained by the other of them.
7. A plain reading of Section 397 Cr.P.C. makes it Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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manifest that Section 397(1) Cr.P.C. enables the aggrieved parties to question the correctness, legality or propriety of any finding, sentence or order recorded or passed by the inferior court before the revisional court i.e. the High Court or the Sessions Judge as concurrent jurisdiction is conferred on the High Court and the Sessions Judge by the Section. Now, it is significant to note that Section 397 (2) Cr.P.C. mandates that the power of revision conferred by sub-section (1) of Section 397 Cr.P.C. shall not be exercised in relation to any interlocutory order in any appeal, enquiry, trial or other proceeding. Therefore, express bar is created by the legislation under section 397 (2) Cr.P.C. to entertain revision against an interlocutory order.
The term "interlocutory order" as mentioned in section 397 (2) Cr.P.C. denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or liabilities of the parties. An order which is pure and simple interlocutory order, which do not decide anything finally is to be considered as interlocutory order and no revision against that interlocutory order is maintainable under section 397(1) Cr.P.C. in view of the express bar imposed under section 397(2) Cr.P.C.
There are three categories of orders that a Court can pass- final, intermediate and interlocutory. There is no doubt that in respect of a final order, a Court can exercise its revision jurisdiction- that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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interlocutory order, the Court cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the Court can exercise its revision jurisdiction since it is not an interlocutory order. An intermediate order is one which is interlocutory order in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order.
8. It was held by Hon'ble Supreme Court of India in case titled as " Amar Nath & Ors. Vs. State of Haryana & Anr." {(1977) 4 SCC 137} that:-
"The main question which falls for determination in this appeal is as to what is the connotation of the term "interlocutory order" as appearing in sub- section (2) of Section 397 which bars any revision of such an order by the High Court. The term "interlocutory order" is a term of well-known legal significance and does not present any serious difficulty. It has been used in various statutes including the Code of Civil Procedure, Letters Patent of the High Courts and other like statutes. In Webster's New World Dictionary "interlocutory" has been defined as an order other than final decision. Decided cases have laid down that interlocutory orders to be appealable Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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must be those which decide the rights and liabilities of the parties concerning a particular aspect. It seems to us that the term "interlocutory order" in Section 397(2) of the 1973 Code has been used in a restricted sense and not in any broad or artistic sense. It merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. Any order which substantially affects the right of the accused, or decides certain rights of the parties cannot be said to be an interlocutory order so as to bar a revision to the High Court against that order, because that would be against the very object which formed the basis for insertion of this particular provision in Section 397 of the 1973 Code. Thus, for instance, orders summoning witnesses, adjourning cases, passing orders for bail, calling for reports and such other steps in aid of the pending proceeding, may no doubt amount to interlocutory orders against which no revision would lie under Section 397 (2) of the 1973 Code. But orders which are matters of moment and which affect or adjudicate the rights of the accused or a particular aspect of the trial cannot be said to be interlocutory order so as to be outside the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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purview of the revisional jurisdiction of the High Court".
It was also held by Hon'ble Supreme Court of India in case titled as " V.C. Shukla Vs. State through C.B.I." (AIR 1980 SC 962] that:-
(1) that an order which does not determine the rights of the parties but only one aspect of the suit or the trial is an interlocutory order;
(2) that the concept of interlocutory order has to be explained, in contradistinction to a final order.
In other words, if an order is not a final order, it would be an interlocutory order;
(3) that one of the tests generally accepted by the English Courts and the Federal Court is to see if the order is decided in one way, it may terminate the proceedings but if decided in another way, then the proceedings would continue; because, in our opinion, the term 'interlocutory order' in the Criminal Procedure Code has been used in a much wider sense so as to include even intermediate or quasi final orders;
(4) that an order passed by the Special Court discharging the accused would undoubtedly be a final order inasmuch as it finally decides the rights of the parties and puts an end to the controversy and thereby terminates the entire proceedings before the court so that nothing is left to be done by the court thereafter;
(5) that even if the Act does not permit an appeal Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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against an interlocutory order the accused is not left without any remedy because in suitable cases, the accused can always move this Court in its jurisdiction under Art. 136 of the Constitution even against an order framing charges against the accused. Thus, it cannot be said that by not allowing an appeal against an order framing charges, the Act works serious injustice to the accused.
It was also held by Hon'ble Supreme Court of India in case titled as "Poonam Chand Jain and Anr. Vs. Fazru"
{(2004) 13 SCC 269} that:-
"Wharton's Law Lexicon (14th Edn. p. 529) defines interlocutory order thus: "An interlocutory order or judgment is one made or given during the progress of an action, but which does not finally dispose of the rights of the parties."
"Thus, summing up the natural and logical meaning of an interlocutory order, the conclusion is inescapable that an order which does not terminate the proceedings or finally decides the rights of the parties is only an interlocutory order. In other words, in ordinary sense of the term, an interlocutory order is one which only decides a particular aspect or a particular issue or a Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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particular matter in a proceeding, suit or trial but which does not however conclude the trial at all."
The principles/guidelines regarding the scope of criminal revision petition have also been laid-down by Hon'ble Supreme Court of India in case titled as "Girish Kumar Suneja Vs. Central Bureau of Investigation" {(2017) 14 SCC 809} and it was held that :-
"15. While the text of sub-section (1) of Section 397 Cr.P.C. appears to confer very wide powers on the court in the exercise of its revision jurisdiction, this power is equally severely curtailed by sub-section (2) thereof. There is a complete prohibition on a court exercising its revision jurisdiction in respect of interlocutory orders. Therefore, what is the nature of orders in respect of which a court can exercise its revision jurisdiction?
16. There are three categories of orders that a court can pass final, intermediate and interlocutory. There is no doubt that in respect of a final order, a court can exercise its revision jurisdiction - that is in respect of a final order of acquittal or conviction. There is equally no doubt that in respect of an interlocutory order, the court Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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cannot exercise its revision jurisdiction. As far as an intermediate order is concerned, the court can exercise its revision jurisdiction since it is not an interlocutory order.
21. The concept of an intermediate order was further elucidated in Madhu Limaye Vs. State of Maharashtra by contradistinguishing a final order and an interlocutory order. This decision lays down the principle that an intermediate order is one which is interlocutory in nature but when reversed, it has the effect of terminating the proceedings and thereby resulting in a final order. Two such intermediate orders immediately come to mind - an order taking cognizance of an offence and summoning an accused and an order for framing charges. Prima facie these orders are interlocutory in nature, but when an order taking cognizance and summoning an accused is reversed, it has the effect of terminating the proceedings against that person resulting in a final order in his or her favour.
Similarly, an order for framing of charges if reversed has the effect of discharging the accused person and resulting in a final order in his or her favour. Therefore, an intermediate order is one which if passed in a certain way, the proceedings Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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would terminate but if passed in another way, the proceeding would continue.
22. The view expressed in Amar Nath and Madhu Limaye was followed in K.K. Patel V. State of Gujarat wherein a revision petition was filed challenging the taking of cognizance and issuance of a process. It was said: (K.K.Patel case, SCC p.201, para11) "11. ..... It is now well-nigh settled that in deciding whether an order challenged is interlocutory or not as for Section 397 (2) of the Code, the sole test is not whether such order was passed during the interim stage (vide Amar Nath v. State of Haryana, Madhu Limaye v. State of Maharastra, V.C. Shukla v. State and Rajendra Kumar Sitaram Pande v. Uttam). The feasible test is whether by upholding the objections raised by a party, it would result in culminating the proceedings, if so any order passed on such objections would not be merely interlocutory in nature as envisaged in Section 397(2) of the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Code. In the present case, if the objection raised by the appellants were upheld by the Court the entire prosecution proceedings would have been terminated. Hence, as per the said standard, the order was revisable."
27. Our conclusion on this subject is that while the appellants might have an entitlement (not a right) to file a revision petition in the High Court but that entitlement can be taken away and in any event, the High Court is under no obligation to entertain a revision petition - such a petition can be rejected at the threshold. If the High Court is inclined to accept the revision petition it can do so only against a final order or an intermediate order, namely, an order which if set aside would result in the culmination of the proceedings. As we see it, there appear to be only two such eventualities of a revisable order and in any case only one such eventuality is before us. Consequently the result of para 10 of the order passed by this Court is that the entitlement of the appellants to file a revision petition in the High Court is taken away and thereby the High Court is deprived of exercising Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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the extraordinary discretionary power available under Section 397 Cr.P.C."
It was held by Hon'ble High Court of Delhi in case titled as " Neelam Mahajan and Anr. Vs. The State & Ors." {(2016) 229 DLT (CN) 29} that:-
"........ In this regard catena of judgments of Hon'ble Supreme Court of India has settled the legal principle while holding that the meaning of the two words "final" and "interlocutory" has to be considered separately in relation to the particular purpose for which it is required. However, generally speaking, a judgment or order which determines the principal matter in question is termed final and simultaneously, an interlocutory order, though not conclusive of the main dispute may be conclusive as to the subordinate matter with which it deals. Therefore, in the considered opinion of this Court, if the decision on an issue puts an end to the suit, the order is undoubtedly a final one but if the suit is still left alive and has yet to be tried in the ordinary way, no finality could be attached to the order."
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9. By way of present revision petition, the revisionist has challenged the impugned order dated 11/01/2023 passed by the Ld. Trial Court thereby application u/s. 143-A NI Act of the complainant/ revisionist was dismissed.
Now this Court has to see as to whether the impugned order is interlocutory, intermediate or final order.
It was held by Hon'ble Karnataka High Court in case titled as "Sanjay P.S. Vs. Abhishek M." {Criminal Petition No. 5944/2023 decided on 28/07/2023} that order on the application u/s. 143-A NI Act is not an interlocutory order but an intermediate order.
Hence, the present revision petition qua the order on the application u/s. 143-A NI Act is maintainable.
10. By way of present revision petition, the revisionist has challenged the impugned order dated 11/01/2023 passed by the Ld. Trial Court thereby application u/s. 143-A NI Act of the complainant/revisionist was dismissed.
Law relating to exercise of power and parameters for exercising the discretion u/s 143-A NI Act has been elaborated by the Hon'ble Supreme Court of India in case titled as "Rakesh Ranjan Shrivastava Vs. The State of Jharkhand & Anr." {Criminal Appeal No. 741/2024, decided on 15/03/2024} that :-
"Subject to what is held earlier, the main conclusions can be summarised as follows: Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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a)The exercise of power under sub-
section (1) of Section 143A is discretionary. The provision is directory and not mandatory. The word "may" used in the provision cannot be construed as "shall."
b)While deciding the prayer made under Section 143A, the Court must record brief reasons indicating consideration of all relevant factors.
c)The broad parameters for exercising the discretion under Section 143A are as follows:-
i) The Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application. The financial distress of the accused can also be a consideration.
ii) A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case.
iii) If the defence of the accused is found to be prima facie plausible, the Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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Court may exercise discretion in refusing to grant interim compensation.
iv) If the Court concludes that a case is made out to grant interim compensation, it will also have to apply its mind to the quantum of interim compensation to be granted.
While doing so, the Court will have to consider several factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant, etc.
v)There could be several other relevant factors in the peculiar facts of a given case, which cannot be exhaustively stated. The parameters stated above are not exhaustive.
11. It is well settled law that scope of revisional jurisdiction is very limited and same cannot be exercised in a routine manner.
It was held by Hon'ble High Court of Delhi in case titled as "Taron Mohan Vs. State & Anr." {AIRONLINE 2021 DEL 687} that :-
"The scope of interference in a Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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revision petition is extremely narrow. It is well settled that Section 397 Cr.P.C. gives the High Courts or the Sessions Courts jurisdiction to consider the correctness, legality or propriety of any finding inter se an order and as to the regularity of the proceedings of any inferior court. It is also well settled that while considering the legality, propriety or correctness of a finding or a conclusion, normally the revising court does not dwell at length upon the facts and evidence of the case. A court in revision considers the material only to satisfy itself about the legality and propriety of the findings, sentence and order and refrains from substituting its own conclusion on an elaborate consideration of evidence.''
12. It is well settled law that the Revisional Court will usually not interfere with the exercise of discretion by the Ld. Trial Court and the Revisional Court will interfere only, if it is found that the discretion has been exercised arbitrarily, capriciously, perversely or if it is found that the Ld. Trial Court has ignored settled principles of law.
13. Before proceeding further, it is relevant to mention here the relevant proceedings before the Ld. Trial Court.
The complainant (revisionist herein) had filed the complaint u/s. 138 N.I. Act against the accused (respondent No.2 Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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herein) on 10/12/2018. On 04/03/2022, an application for amendment of complaint has been filed by the complainant to implead Sharma Kalypso Pvt. Ltd. as an accused and the aforesaid application was allowed by the Ld. Trial Court vide order dated 04/03/2022 and Sharma Kalypso Pvt. Ltd. was impleaded as accused No.2. Vide order dated 04/03/2022 passed by the Ld. Trial Court, accused Ramesh Sharma and accused company M/s Sharma Kalypso Pvt. Ltd. were summoned for 05/05/2022. As per order-sheet dated 05/05/2022, summons were received with a report of 'refused' and Bailable Warrants were issued against the accused No.2 for 03/06/2022. On 03/06/2022, Bailable Warrants were received back un-executed and Non- Bailable Warrants were issued against the accused Ramesh Sharma for 26/07/2022. On 16/07/2022, accused Ramesh Sharma had filed an application for cancellation of Non-Bailable Warrants and Non-Bailable Warrants were cancelled. On 26/07/2022, it was submitted that the accused company is under going insolvency proceedings and a liquidator has been appointed. On 03/08/2022, copy of order dated 02/06/2022 passed by NCLT, Delhi was placed on record, as per which, insolvency proceedings have been initiated against accused company M/s Sharma Kalypso Pvt. Ltd. and moratorium u/s. 14 IBC has been declared. Accordingly, proceedings against the accused company were stayed till the moratorium u/s. 14 IBC is in effect, however, it was directed by the Ld. Trial Court that the proceedings against the accused No.1 shall continue. On Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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13/09/2022, notice u/s. 251 Cr.P.C. for the offence u/s. 138 NI Act was served upon the accused, to which, he pleaded not guilty and claimed trial. On 13/09/2022, at the oral request of the accused, plea of the accused u/s. 145(2) NI Act was allowed and matter was fixed for cross-examination of the complainant for 15/10/2022. On 15/10/2022, an application u/s. 143-A NI Act was filed by counsel for the complainant and CW-1 was partly cross-examined and further cross-examination was deferred for want of documents. On 03/12/2022, arguments on the application u/s. 143-A NI Act were heard and CW-1 was partly cross- examined and further cross-examination was deferred for want of documents. Vide order dated 11/01/2023 passed by the Ld. Trial Court, application u/s. 143-A NI Act of the complainant was dismissed. On 11/01/2023, CW-1 was further cross-examined and discharged and matter was fixed for statement of accused u/s. 313 Cr.P.C. On 17/05/2023, statement of the accused u/s. 313 Cr.P.C. was recorded and matter was fixed for DE. On 26/07/2023, it was submitted on behalf of the accused that he does not wish to lead DE and DE was closed. On 28/08/2023, an application u/s. 311 Cr.P.C. was filed on behalf of the complainant. Vide order dated 15/02/2024, application u/s. 311 Cr.P.C. of the complainant was allowed and matter was fixed for CE. On 30/03/2024, CW-1 was cross-examined and discharged and CE was closed. On 04/05/2024, further statement of the accused u/s. 313 Cr.P.C. was recorded and matter was fixed for DE. On 04/05/2024, it was submitted that accused No.1 company has undergone liquidation.
Digitally
signed by
VIJAY
VIJAY SHANKAR
SHANKAR Date:
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17:29:45 -0200
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On 29/05/2024, it was submitted that the accused does not wish to lead defence evidence and the matter was fixed for final arguments. On 01/10/2024 and 24/01/2025, part final arguments were heard. Now, the matter is fixed for further final arguments for 11/02/2025.
14. The complaint u/s. 138 N.I. Act was filed by the complainant on 10/12/2018 and vide order dated 04/03/2022 passed by the Ld. Trial Court, accused Ramesh Sharma and accused company M/s Sharma Kalypso Pvt. Ltd. were summoned. In view of the same, the delay from 10/12/2018 to 04/03/2022 cannot be attributed to the accused/ respondent No.2. There is nothing on the record to show that the accused/respondent No.2 has evaded the service for a long time before the Ld. Trial Court. There is also nothing on the record to show that the accused/respondent No.2 has deliberately delayed the case/trial before the Ld. Trial Court. Accused/ respondent No.2 has not admitted his legal liability either in part or whole towards the cheque in question. The application u/s. 143-A NI Act of the complainant was dismissed on 11/01/2023 and on the very same date, CW-1 was further cross-examined by counsel for the accused/respondent No.2. As per Trial Court Record, insolvency proceedings stated to be initiated against accused company M/s Sharma Kalypso Pvt. Ltd. and moratorium u/s. 14 IBC has been declared and accused No.1 company stated to be undergone liquidation. In the present revision petition, Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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M/s Sharma Kalypso Pvt. Ltd. or Official Liquidator/ IRP has not been made as party by the revisionist. No reasonable explanation has been adduced on record by the revisionist for the same. Part final arguments have already been heard by the Ld. Trial Court and now, the matter is fixed before the Ld. Trial Court for further final arguments.
15. It is well settled law that exercise of power u/s. 143-A NI Act is discretionary and the provision is directory and not mandatory and while deciding the application/prayer u/s. 143-A NI Act, the Court must record brief reasons indicating consideration of all relevant factors.
On perusal of impugned order, this Court is of the considered opinion that all the parameters for exercising the discretion u/s. 143-A NI Act have been duly dealt with by the Ld. Trial Court while passing the impugned order. All the points and contentions of both the parties were duly dealt with by the Ld. Trial Court in the impugned order.
There is nothing on the record to show that the Ld. Trial Court has exercised its discretion arbitrarily, capriciously and perversely. There is also nothing on the record to show that the Ld. Trial Court has ignored the settled principles of law. There is no illegality, impropriety and infirmity in the impugned order passed by the Ld. Trial Court.
Case laws relied upon by counsel for the revisionist are not applicable to the facts and circumstances of the present Digitally signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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case for the purpose of grant of interim compensation u/s. 143-A NI Act in favour of the complainant.
16. Applying priori and posteriori reasonings and the aforesaid case laws, this Court is held that there is no illegality, impropriety and infirmity in the impugned order passed by the Ld. Trial Court. Accordingly, the present revision petition of the revisionist is dismissed. No order as to costs. Nothing stated herein shall tantamount to be an expression of opinion on the merits of the case.
Trial Court Record be sent back alongwith the copy of this judgment. Revision file be consigned to record room after Digitally due compliance. signed by VIJAY VIJAY SHANKAR SHANKAR Date:
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0200 Announced in the open Court on 25/01/2025 (VIJAY SHANKAR) ASJ-04 (West) Tis Hazari Courts, Delhi CR No. 156/2023 Page No.34 of 34