Delhi District Court
Raju vs The State on 11 March, 2025
DLSE010026842024
IN THE COURT OF SH. LOVLEEN ADDL. SESSIONS JUDGE-03
SAKET COURTS, NEW DELHI
CR Rev No. 113/2024
RAJU
S/o Shri Kanta Prasad
Resident of: C-27 Private Colony
Srinivaspuri,
New Delhi-110065
........Revisionist
versus
1. The State
(Govt. of NCT of Delhi)
2. SUKHDEV
S/o Sh. Matai Ram @ Moti Ram
R/o Q-10-C, 4th Floor,
Private Colony, Srinivaspuri
New Delhi-110065.
............Respondents
CR Rev No. 113/2024 Raju vs State 1/18
Date of institution : 19.03.2024
Date of Reserving judgment : 12.02.2025
Date of Pronouncement : 11.03.2025
JUDGMENT
1. This is a revision petition filed u/s 397 Cr.P.C against the impugned order dated 19.01.2024 passed by the court of Ld. Metropolitan Magistrate-03, (NI Act), South-East District in CC No. 38979/2019 titled as Sh. Sukhdev Vs. Raju. The said complaint was filed by respondent No. 2 herein against the revisionist herein U/s 138 Negotiable Instruments Act. For the sake of convenience the revisionist herein shall be referred to as 'the accused' and the respondent No. 2 herein shall be referred to as 'the complainant'. Vide the impugned order dated 19.01.2024, Ld. Magistrate was pleased to allow the application moved by the complainant u/s 143 A Negotiable Instruments Act and ordered the accused to pay interim compensation to the tune of Rs.3,70,000/- to the complainant.
Grounds of Revision
2. The grounds cited by the revisionist / accused are as under:
A. Because the impugned order dated 19.01.2024 is erroneous both on the facts as well as the law. B. Because the impugned order passed by Ld. MM is without application of judicial mind and needs to be set-
CR Rev No. 113/2024 Raju vs State 2/18 aside by this Hon'ble Court.
C. Because the facts and circumstances of the case require the indulgence of this Hon'ble Court for the ends of justice.
D. Because the impugned order is liable to be set-aside being based on mis-appreciation of the facts of the case and evidence on record.
E. Because the grave in justice has been caused to the petitioner by this impugned order.
F. Because the Ld. Trial Court has wrongly allowed the application of the respondent no.-2/complainant by ignoring documentary evidence i.e. Annexure P-5 which was executed by the respondent no.-2/complainant in regard of working of petitioner/accused as an supervisor with the respondent no.-2/complainant. LD. Trial court further failed to appreciate the document Annexure P-6 which is attendance register maintained during service of petitioner with the respondent no.-2/complainant. The Ld. Trial court further failed to consider that the petitioner has been trapped by the respondent no.-2/complainant.
G. Because the Ld. Trial Court failed to consider the document i.e. Annexure P-7 i.e. application regarding intimation to bank by the petitioner regarding lost of cheque in question in the year 2017 and after only that intimation payment was stopped and which is also the CR Rev No. 113/2024 Raju vs State 3/18 reason of cheque bounce mentioned in the memo filed by the complainant.
H. Because the Ld. Trial Court has wrongly considered the documents i.e. Annexure P-10 which was filed by the respondent no.-2/complainant in favour of the complainant. It is pertinent to mention here that in above stated documents it is very clearly mentioned that the petitioner/accused was working as Authorised Representative of his employer M/s U K Ventures to do supervise work and bill etc but the LD. Trial Court wrongly considered by considering the same as proof as "accused working as contractor".
I. Because Ld. MM has failed to appreciate that the application was filed after a period of more than 2 years of framing of notice and same was just filed only to harass the petitioner.
J. Because Ld. MM has failed to appreciate that the application filed by the respondent/complainant is clear abuse of process of law as he has not come with clean hands and has concealed material and true facts about the employment status of the petitioner and as such the orders passed by the trial court below is bad in law and needs to be set aside.
K. Because it is settled law that provision u/s 143 A NI Act is to be used judicially and not mandatory and the orders passed are passed in haste and without giving any reasoning and as such the same needs to be set aside.
CR Rev No. 113/2024 Raju vs State 4/18 L. Because the said provision is directory in nature and as per the mandate of the Act the said provision is to be used on case to case basis. It has been held in catena of judgment that the conduct of the parties is to be looked into while passing of the orders in the said application. It is humbly submitted that the said application is a pressure tactic used by the complainant and he has raised a false plea against the petitioner. The said is suffice to say that the said application is nothing but abuse of process of law.
M. Because Ld. MM has failed to appreciate that the said cheque has not been issued for any lawful liability towards the complainant/respondent and the orders passed are without any reasoning and as such needs to be set aside by the orders of this Hon'ble Court. N. Because the documents filed by the respondent even show that he was working as an supervisor and not as an contractor with the PWD.
O. Because no document has been placed on record to show that the petitioner has ever worked as an contractor since the year 2012 till today.
P. Because the facts and circumstances of the case require the indulgence of this Hon'ble Court for the ends of justice.
Q. Because the grave in justice has been caused to the revisionist/petitioner by this impugned order.
CR Rev No. 113/2024 Raju vs State 5/18 R. Because the order passed by the Ld. Trial Court is illegal and perverse and is liable to be set aside by this Hon'ble Court.
3. It is prayed in the petition by the accused that the impugned order dated 19.01.2024 may be set aside.
Submissions of Complainant
4. It is submitted on behalf of the complainant that the Ld. Magistrate has correctly passed the impugned order as a prima facie case has been made out against the accused from the documents placed on record by him (complainant). It is further submitted that the accused has been deliberately delaying the disposal of the matter on merits, which entitles the complainant for grant of interim relief. It is further submitted that the accused has stopped appearing in the Trial Court since long. It is prayed that the present petition may be dismissed.
DISCUSSION Law Governing The Issue
5. Before proceeding to adjudicate the matter, it would be appropriate to reproduce the provision made U/s 143A of Negotiable Instruments Act for a better understanding of the issue. The relevant provision is reproduced herein below:
"Section 143-A: Power to direct interim compensation.--(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under section 138 CR Rev No. 113/2024 Raju vs State 6/18 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 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 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."
6. In JSB CARGO and Freight forwarder (P) Ltd vs State 2021 SCC Online Del 5425 at para no. 62, it has been categorically held by the Hon'ble Delhi High Court that the said provision under Section 143A of Negotiable Instruments Act is directory and not mandatory. In Ashwin Ashokrao Karokar Vs. Laxmikant Govind Joshi Crl. (Writ Petition No. 48/2022) date of decision 07.07.2022, the same issue was dealt with by CR Rev No. 113/2024 Raju vs State 7/18 Hon'ble High Court of Bombay and it was held that the provision u/s. 143A of Negotiable Instruments Act is directory and not mandatory. Recently, the Hon'ble Supreme Court of India, speaking through Rakesh Ranjan Shrivastava Vs. State of Jharkhand and Anr. 2024 SCC Online SC 309, has also ruled that the exercise of power u/s 143A(1) of Negotiable Instruments Act is discretionary and that the provision is directory and not mandatory in nature.
7. Here it would be appropriate to reproduce the principles laid down w.r.t. exercise of jurisdiction u/s 143A Negotiable Instruments Act regard in L.G.R. Enterprises & Ors. Vs. P. Anbazhagan 2019 SSC online Madras 38991. The relevant extract is as under:
"8. Therefore, whenever the trial Court exercises its jurisdiction under Section143A(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 does not cross examine the witnesses and keeps on dragging with the proceedings by filing one petition after another or
- the accused person absonds and by virtue of a non-bailable warrant he is secured and brought before the Court after a long time or
- he files a recall non-bailable warrant petition after a long time and the Court while considering his petition for recalling the non-bailable warrant can invoke Section CR Rev No. 113/2024 Raju vs State 8/18 143A(1) of the Act. This 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 the interim compensation of 20% to the complainant."
8. We may also note observations made by Hon'ble Bombay High Court in Ashwin Ashokrao (Supra) which are to the effect that grant of interim compensation, would be at the discretion of the Court, based upon consideration of various factors, such as (a) Whether the requirement of Section 138 of Negotiable Instruments Act were fulfilled, (b) Whether the pleadings disclosed the drawing of presumption (c) Whether proceedings were within limitation and (d) Whether prima facie a legal debt or liability was disclosed from the complaint or the notice of demand preceding it, and factors as such.
9. In Rakesh Ranjan Shrivastava Vs. State of Jharkhand & Anr. 2024 SCC OnLine SC 309, the Hon'ble Supreme Court of India has also laid down the broad parameters for exercising jurisdiction u/s 143A of Negotiable Instruments Act. The same are as under:-
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.
CR Rev No. 113/2024 Raju vs State 9/18 iii. If the defence of the accused is found to be prima facie plausible, the 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.
FACTS OF THE CASE
10. The facts of the case have been correctly noted by the Ld. Magistrate in the impugned order at para 2. The same is reproduced below for ready reference:-
"2. It is submitted by the Ld. counsel for the complainant that accused Raju and complainant Sukhdev were friends as their profession was same and they were both working with CPWD and PWD as contractors for last 10 years. That accused used to borrow money from the complainant as and when the accused required money to meet the expenses of government projects which were tendered to him. However, accused used to refund the borrowed money to the complainant initially in order to win over the faith of complainant. That accused borrowed money Rs. 25,47,000/- w.e.f. 06.04.2015 till 30.03.2016 from the CR Rev No. 113/2024 Raju vs State 10/18 complainant on various dates and accused promised to return money to the complainant in one go. Complainant is relying on his bank statements in this regard. Furthermore, when complainant asked for refund of said loan, then accused only paid Rs. 6,97,000/- out of Rs. 25,47,000/- in the month of September, 2016. The remaining loan was Rs. 18,50,000/- which was to be paid by the accused to the complainant. Complainant reiterated to the accused regarding payment of remaining loan. That accused issued a cheque bearing No. 056800 dated 29.06.2019 drawn on Vijaya Bank, R.K. Puram, New Delhi vide Account No. 601101011003356 in favour of complainant towards payment of loan amount, however, upon presentation, the abovesaid cheque was dishonoured vide return memo dated 30.07.2019 with the reasons / remarks "Payment stopped by Drawer". That the complainant informed the accused regarding dishonour of cheque but the accused did not pay any heed. However, complainant sent a legal notice dated 31.07.2019 vide speed post as on 01.08.2019, which was served upon the accused on 10.08.2019 as per the tracking report. Thereafter, 15 days time since receipt of legal notice also elapsed and accused failed to make the payment to the complainant and committed an offence under Section 138 of NI Act. It is also submitted on behalf of the complainant that notice of accusation was framed against the accused on 13.02.2020 to which he has pleaded not guilty. That accused be directed to pay interim compensation upto 20% amount of the cheque amount i.e. amounting to Rs. 3,70,000/- as present complaint is pending CR Rev No. 113/2024 Raju vs State 11/18 since more than 4 years. That interim compensation is prayed."
11. The contentions of the accused have also been noted by the Ld Magistrate in the impugned order at para 3. The same is reproduced below for ready reference.
"3. On the contrary, Ld. Counsel for the accused has submitted that the application should not be allowed as the accused does not owe any legal liability in the favour of the complainant to the extent of the amount mentioned in the cheque in question. That the complainant is a contractor and accused was an employee / supervisor hired by the complainant between 2014 till 2017 who was withdrawing a salary of Rs. 9,000/- per month. That the complainant had issued a GPA to the accused to purchase and file tenders and to make payments to the concerned offices and to have refund, also to employee the labours and purchase building materials. To conduct the business and to discharge the liabilities of the complainant, the accused used to receive payments from the complainant through cheques / bearer cheques and used to give the same back in cash. The cheque in question was lost during the year 2017 when the accused left the job with the complainant and the same was reported to the concerned authorities and also stopped instructions were given by the accused to the bank. That cheque in question has been misused by the complainant by also misusing the fiduciary relationship between the complainant and the accused. That accused is illiterate and was an employee of the complainant and never doubted the intentions of the complainant. That complainant has cooked up CR Rev No. 113/2024 Raju vs State 12/18 a false story regarding loan being taken from the complainant and has misused the cheque in question. That accused never took any loan from the complainant. That accused is a poor person and a daily wager and will be severely prejudiced if present application is allowed. That the provision under Section 143-A NI Act is directory and not mandatory in nature and has to be considered in favour of genuine drawee and not malafide drawee. That complainant has not come with clean hands. That accused relies on GPA executed by complainant in favour of accused to execute contract work. That accused relies muster roll as well as wages sheet to show that he was working as a mason for the complainant and drawing salary and was not contractor of CPWD/ PWD. That accused relies on application sent to his bank to stop payment regarding his lost cheque i.e. the cheque in question. That accused also relies on copy of certain bearer cheques issued by the complainant to his other employees to emphasize that the bearer cheques were also issued to accused in normal course of business by the complainant to withdraw money from bank and not as a loan. It is submitted that prayer for interim compensation under Section 143-A of NI Act be dismissed."
12. Thereafter, Ld. Magistrate was pleased to allow the application u/s 143 A NI Act moved by the complainant. The reasoning given by the Ld. Trial Court while passing the impugned order is reproduced below for ready reference:
CR Rev No. 113/2024 Raju vs State 13/18 "7. In order to decide as to whether the application under Section 143A NI Act ought to be allowed or not, a look at the reasons for introducing the provision is a must. The Statement of Objects and Reasons of the Amendment No.20 of 2018 (that introduced the provision) states that the amendment was to reduce the pendency of cases under NI Act and to deal with the undue delay in cheque bouncing cases. The amendment was introduced "to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money."
8. Thus, the purpose of introducing Section 143A NI Act was to counter dilatory tactics, provide relief to the complainant and to deter cheque bouncing cases. In the case at hand, the accused has pleaded not guilty, claimed trial. Accused has admitted signing the cheque in question.
9. Perusal of the file reveals that the accused entered appearance on the very first effective date upon issuance of summons i.e. on 13.02.2020 whereupon notice was served upon the accused under Section 251 Cr.P.C. Thereafter, on 11.11.2020 complainant was absent whereas, Ld. Counsel for accused was present. Thereafter, on 04.03.2021 and 30.11.2021 adjournments were taken on behalf of the main counsel of the accused due to his unavailability due to which CE could not be conducted. It appears that even on 25.04.2022 main counsel for accused was not available CR Rev No. 113/2024 Raju vs State 14/18 whereupon, an application under Section 143-A NI Act was filed on behalf of complainant seeking interim compensation. Even thereafter, on 04.06.2022 part arguments were heard, however on 23.08.2022 again main counsel for accused was not available due to medical reason. Even on 14.11.2022 adjournment was taken on behalf of complainant, however, even main counsel for accused was absent. Even on 21.04.2023 adjournment was taken on behalf of accused due to illness of the father of the main counsel for accused. Even on 15.07.2023 adjournment was taken by accused due to absence of his counsel due to which CE could not be conducted. Again on 05.09.2023 adjournment was taken on behalf of accused due to unavailability of main counsel of accused. The abovesaid facts reveal that accused has been taking regular adjournments on one pretext or the other and delaying the matter as cross-examination of the complainant has yet to begun despite notice being already framed under Section 251 Cr.P.C. as early as on 13.02.2020. As far as the merits of the application is concerned, the accused has taken the defence that he never issued the cheque in question to the complainant and that he had lost the cheque in question whereupon, he intimated the bank to stop payment for the same. Accused has taken a bald defence that he does not know as to how the complainant has come into the possession of the cheque and that he owes no legal liability and that he did not receive the legal notice. Perusal of the statement of bank account of the complainant reveals that CR Rev No. 113/2024 Raju vs State 15/18 accused was withdrawing amounts upon bearer cheques of the complainant on several instances beginning from 06.04.2015 till 30.03.2016. In the present matter, the cheque bearing No. 056800 for an amount of Rs. 18,50,000/- dated 29.06.2019 in favour of the complainant drawn on Vijaya Bank, R.K. Puram Branch, New Delhi, was dishonoured upon presentation vide return memo dated 30.07.2019, with the reasons / remarks "payment stopped by Drawer" i.e. after the provision of 143A had come into existence. The notice has been framed upon the accused.
10. In the present matter, the return memo states the reason for dishonour of cheques as "payment stopped by Drawer"
and the accused has not disputed the genuineness of the return memo. As far as the documents relied on by the accused are concerned, same are not bearing any signature or thumb impression on the wages sheet and cannot be prima facie relied on. Further, the application to the concerned bank is undated nor having any receiving upon it and is merely a photocopy. The copy of bearer cheques of the complainant are irrelevant to the present complaint as the present complaint is on a different cheque in question which is allegedly issued by the accused to the complainant. The documents filed by the complainant alongwith his written arguments to the application under Section 143-A NI Act are certified documents showing the accused as a contractor. In view of the above, this court deems it fit to allow the application under Section 143-A NI Act.
CR Rev No. 113/2024 Raju vs State 16/18
12. Accused is directed to pay interim compensation to the complainant to the tune of 20% of the cheque in question i.e. Rs. 3,70,000/- within sixty days from today."
DECISION
13. A bare perusal of the impugned order reflects that the Ld. Magistrate has considered all the pleadings/arguments and the records available before him. Ld. Magistrate has also considered the plea of defence raised by the accused. Ld. Magistrate has noted that the accused has been deliberately taking repeated adjournments, thereby delaying the disposal of the matter. In fact, it has been argued before this Court that the accused has stopped appearing before the Ld. Magistrate leading to issuance of coercive process against him. The said argument is duly substantiated from the TCR, which reflects that the accused has not appeared before the Ld. Magistrate since 20.03.2024. This factor goes against the accused at this stage.
14. As to the merits of the case, this Court notes that the complainant claims that he advanced loans to the accused from time to time, in part repayment of which loans the cheque in question was issued by the accused. Complainant has placed on record photocopies of his bank statement which indeed reflect payments made to the accused through cheques from time to time. On the other hand, accused has merely stated that he lost the cheque in question and therefore, he instructed his bankers not to encash the same. However, accused has not explained as to why he was keeping a signed, blank cheque with him if he was working merely as a 'labourer'. In the considered opinion of this Court, the observations made by Ld. Magistrate, to the effect that the accused has raised a bald defence, CR Rev No. 113/2024 Raju vs State 17/18 does seem appropriate in view of the above facts and circumstances. Moreso, when the accused has not explained as to why all the 'defences' argued at the time of disposed of application moved u/s 143A Negotiable Instruments Act (by the complainant) were not put forth before the Ld. Magistrate at the time of framing of Notice u/s 251 Cr.P.C. That apart, the other documents relied upon by the accused to deny his liability does not seem to substantiate his defence at all. Reason being the fact that the said documents are photcopies and none of them bears any acknowledgement of the claim of accused by any authority whatsoever, nor the complainant admits the same. The copy of General Power of Attorney (undated) does not seem to further the defence of the accused as narrated at the time of framing of notice u/s 251 Cr.P.C. More so, when the complainant has flatly denied the genuineness of said GPA before this Court. In the entire facts and circumstances, this Court does not find any reasonable cause to depart from the opinion rendered by the Ld. Magistrate in the impugned order dated 19.01.2024. The order passed by Ld. Magistrate does not seem to be arbitrary, perverse or irrational nor does it reflect any jurisdictional error which occasioned any injustice in the matter. The present petition is devoid of any merits and is hereby dismissed.
15. TCR be sent back along with the copy of this judgment.
16. Revision file be consigned to Record Room as per rules.
Dictated and Announced
in open Court on 11.03.2025
(Lovleen)
Digitally
signed by ASJ-03 (South East)
LOVLEEN
LOVLEEN Date:
Saket Courts, Delhi
2025.03.11
15:51:17
+0530
CR Rev No. 113/2024 Raju vs State 18/18