Delhi District Court
Priya Aggarwal vs Bharti Sharma on 6 March, 2024
IN THE COURT OF MS. SURABHI SHARMA VATS:
ADDITIONAL SESSIONS JUDGE-04: SHAHDARA: KKD
COURTS: DELHI.
Criminal Revision No.343/2023
In the matter of:
Priya Aggarwal (Revisionist/ accused)
W/o Sh. Hanuman Prasad Aggarwal
R/o A-123, Krishna Park,
Devli, New Delhi - 110062. ...........
revisionist
Versus
Smt. Bharti Sharma (respondent)
W/o Sh. Om Dutt Sharma
R/o H. No.256, 3rd floor, RPS,
DDA FLats, Mansrover Park,
New Delhi - 110032. ........... Respondents
Date of Institution : 25.11.2023
Order reserved on : 02.03.2024
Order delivered on : 06.03.2024
JUDGMENT
1. Vide this judgment, this court shall dispose of the revision filed under Section 397 Cr.P.C for setting aside the impugned order dated 18.10.2023 passed by Ld. MM in a complaint case bearing No.1768/2022 titled as Bharti Sharma Vs. Priya Aggarwal under Section 138 NI Act whereby, Ld. trial Court has allowed an application U/s 143A Negotiable Instrument Act filed on behalf of the complainant (respondent herein) and directed the revisionist/ accused Priya Aggarwal to pay 10% of the cheque amount (i.e. Rs.1,60,000/-) to the complainant as interim compensation within 60 days from the date of order.
Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 1 of 122. Being aggrieved with the impugned order, revisionist has filed the present revision petition on the grounds that the Ld. Trial Court has failed to apply its judicial mind in passing the impugned order; that Ld. Trial Court has failed to consider the fact that revisionist has already paid Rs.9,00,000/- to the respondents in cash; that Ld. Trial Court has failed to consider that the provision under section 143A NIAct is directory, not mandatory and discretion cannot be used arbitrarily.
3. At the very outset, this Court deems it apposite to dwell upon the scope of Revisional Jurisdiction of this Court.
In the judgment titled as 'Amit Kapoor Vs. Ramesh Chander', Crl. Appeal No. 1407 of 2012 (Arising out of SLP (Crl.) No.1516 of 2010) decided on 13.09.2012, the Hon'ble Supreme Court of India has observed that :-
"8. ....Section 397 of the Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law . There has to be a well- founded error and it may not be appropriate for the court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law.......
4. The Hon'ble Apex Court in 'New India Assurance Co. Ltd. Vs. Krishna Kumar Pandey', Crl. Appeal No.1852 of 2019 decided on 06.12.2019, made the following observations :
"8. The scope of the revisional jurisdiction of the High Court (or Sessions Court) under Section 397 Cr.P.C, is limited to the extent of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order passed by an inferior Court. The revisional Court is entitled to look into the regularity of any proceeding before Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 2 of 12 an inferior Court. As reiterated by this Court in a number of cases, the purpose of this revision impugnsal power is to set right a patent defect or an error of jurisdiction or law."
5. In this regard, it would also be apt to quote another judgment of Taron Mohan v. State & Anr, Criminal Rev. Petition 646/2018, decided on 25.01.2021, wherein Hon'ble Delhi High Court has observed as under:-
"9. The scope of interference in a revision petition is extremely narrow. It is well settled that Section 397 CrPC 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."
6. The precise purpose of Revision is to examine the correctness, legality and propriety of the order in question and to set right a patent defect or an error of jurisdiction or law. Needless to say, that the power of revision needs to be exercised fairly, rationally and judiciously in order to put right any manifest error of law or jurisdiction.
7. Perusal of the impugned order dated 18.10.2023 vide which Ld. MM has allowed an application U/s 143A NI Act in the complaint case i.e. CC NI Act No.1786/22 titled as 'Bharti Sharma Vs. Priya Aggarwal' filed by the respondent against the revisionist/ accused reveals Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 3 of 12 that the Ld. MM allowed an application U/s 143A NI Act of the revisionist, while making the following observations :-
"The object of Section 143-A NI Act is to compensate the complainant during the pendency of proceedings under Section 138 of NI Act. The said section introduces an enabling provision and is directory in nature (see 'M/s JSB Cargo and Freight Forwarder Pvt. Ltd. and Ors. v. State and Anr.' (2021 SCC Online Del 5425)). A perusal of Section 143(A)(1) NI Act shows that the Court "may" order the interim compensation depending upon the specific facts and circumstances of each case. The word 'may' herein shows that a discretion is vested in the trial Court not only in regard to the quantum of interim compensation but also in regard to whether the interim compensation itself be awarded in the specific facts of the case or not. Therefore, the Court is not bound to order interim compensation in all the cases to the complainant.
In the present case, plea of defence taken by accused under Section 251 Cr.P.C. is that she has no liability towards the complainant and she has no dealings with the complainant, th dealing of the complainant is with her husband and the husband has already paid back the debt amount. The object of the provision under Section 143 A is to compensate the complainant during the pendency of the trial because of unnecessary delays caused by the accused in the trial. In the instant case, the perusal of the record shows that time and again adjournment has been sought by the accused for one purpose or the other, also right of cross examination in the present case has been closed owing to the adjournments sought by the accused, further today, an application u/s 311 Cr.P.C has been moved by the accused. The litmus test for determining the grant of interim compensation is the role of the accused in delaying the trial. In the instance case, accused has already delayed the trial.
In view of the discussion above, this court is of the considered opinion that there exist circumstances which warrant grant of interim compensation to the complainant. Further, the accused is directed to pay 10% of the cheque amount i.e. Rs.1,60,000/- (One Lakh Sixty thousand rupees only) to the complainant as interim compensation within 60 days from today. Accordingly, the present application is disposed off as allowed."Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 4 of 12
8. At this stage, this Court deems it apt to refer to the judgment titled as "M/s JSB Cargo And Freight Forwarder Pvt. Ltd. Vs State & Anr. decided on 20th December, 2021", in which the Hon'ble High Court of Delhi has observed that :
"32. It is essential to advert to the observations of the Hon'ble High Court of Chattisgarh in Rajesh Soni (supra) wherein, it was observed vide paragraphs 9 to 19 to the effect:-
"9. Before adverting to the submission made by learned counsel for the petitioner, it is expedient to see that aims and object of amended provision of Section 143A of the Act, 1881, which reads as under:--
―The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange 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 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 institutions, including banks, to continue to extend financing to the productive sectors of the economy.
10. From perusal of the Act, 1881 as well as amended Section 143A of the Act, 1881, it is clear that the Act, 1881 has played a substantial role in the Indian commercial landscape and has given rightful sanction against defaulters of the due process of trade who engage in disingenuous activities that causes unlawful losses to rightful recipients through cheque dishonour. Thereafter, the legislature has amended Act, 1881, which came into force on Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 5 of 12 01.09.2018 with the aim to secure the interest of the complainant alongwith increasing the efficacy and expediency of proceedings under Section 138 of the Act, 1881.
Section 143A of the Act, 1881 stipulates that under certain stages of proceedings under Section 138 of the Act, 1881, the Court may order for the drawer to make payment upto 20% of the cheque amount during the pendency of the matter. The order under Section 143A of the Act, 1881 can be passed only in summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint, in any the case upon framing of charge.
11. From perusal of Section 143A of the Act, 1881, it is quite evident that the Act has been amended by granting interim measures ensuring that interest of complainant is upheld in the interim period before the charges are proven against the drawer. The intent behind this provision is to provide aid to the complainant during the pendency of proceedings under Section 138 of the Act, where he is already suffering double edged sword of loss of receivables by dishonor of the cheque and the subsequent legal costs in pursuing claim and offence. These amendments would reduce pendency in courts because of the deterrent effect on the masses along ensuring certainty of process that was very much lacking in the past, especially enforced at key stages of the proceedings under the Act. The changes brought forth by way of the 2018 amendment to the Negotiable Instruments Act, 1881 are substantial in nature and focus heavily on upholding the interests of the complainants in such proceedings. 12. From perusal of the amended provision of Section 143A of the Act, 1881, it is clear that the word may' used is beneficial for the complainant because the complainant has already suffered for mass deed committed by the accused by not paying the amount, therefore, it is in the interest of the complainant as well the accused if the 20% of the cheque amount is to be paid by the accused, he may be able to utilize the same for his own purpose, whereas the accused will be in safer side as the amount is already deposited in pursuance of the order passed under Section 143A of the Act, 1881. When the final judgment passed against him, he has to pay allowances on lower side. Section 143A of the Act, 1881 has been drafted in such a manner that it secures the interest of the complainant as well as the accused, therefore,from perusal of aims and object of amended Section 143A of the Act, 1881, it is quite clear that the word may' may be treated as shall' and it is not discretionary but of directory in nature.
Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 6 of 1217. In L.G.R. Enterprises (Supras), the Hon'ble Madras High Court held as under:-- ―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 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 nonbailable warrant can invoke Section 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.
9. The other reason why the order of the trial Court under Section 143A(1) of the Act, should contain reasons, is because it will always be subjected to challenge before this Court. This Court while considering the petition will only look for the reasons given by the Court below while passing the order under Section 143A(1) of the Act. An order that is subjected to appeal or revision, should always be supported by reasons. A discretionary order without reasons is, on the face of it, illegal and it will be set aside on that ground alone.‚
18. The judgment cited by learned counsel for the petitioner also indicates that the Judicial Magistrate First Class has to pass a reasoned order for determining quantum of compensation, which is payable to the victim looking to the facts and circumstances each case, but does not suggest any iota that grant of compensation as per Section 143A of the Act, 1881 is of discretionary in nature."
Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 7 of 129. Section 143A NI Act is reproduced herein for ready reference :
Section 143A NI Act - Power to direct interim compensation -
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation1 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 percent 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.
(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, shall be reduced by the amount paid or recovered as interim compensation under this section."
10. Now, adverting to the factual matrix of the case, the brief facts of the case as per the complaint are that the complainant and Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 8 of 12 accused are known to each other and they have family and friendly relations with each other; that the husband of the accused/ revisionist is the rakhi brother of the respondent/ complainant; the accused/ revisionist was in urgent need of financial assistance and therefore, accused/ revisionist and her husband approached the complainant/ respondent and her husband for a loan of Rs.18,00,000/- and accordingly, considering the request and urgency of accused, complainant/ respondent and her husband advanced a loan of Rs.18,00,000/- to the accused/ revisionist and her husband; in respect of said transaction, a Notarized Memorandum of Understanding dated 03.05.2019 was executed between the parties. Further another loan of Rs.14,00,000/- was advanced to the appellant/ accused and her husband and therefore, total loan of Rs.32,00,000/- was given to the appellant/ accused and her husband by complainant and her husband; that in continuance of the previous MOU, another MOU dated 02.03.2022 was also executed between the parties;
Further, in discharge of the liability, accused issued cheques in question, in favour of the complainant; that on assurance of accused/ revisionists, the respondent/ complainant presented the said cheques in bank and on presentation, said cheques were returned unpaid on account of reason 'Payment stopped by drawer' vide return memos. Thereafter, legal notice was issued but despite the receipt of legal notice, revisionist/ accused failed to make the payment of the cheque amount.
11. Trial Court record reveals that on 30.09.2022, Ld. MM took cognizance of the offence U/s 138 NI Act and summoned the accused in the present matter; that on 22.12.2022, accused appeared before the Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 9 of 12 Court and Ld. MM gave opportunity to both the parties to explore the possibility of settlement and sent the matter to Mediation Centre. However, matter could not be settled between the parties and Ld. MM further proceeded with the trial of the matter; on 13.04.2023, exemption of accused from personal appearance was sought; again on 15.04.2023, exemption of accused was sought. On the next date of hearing i.e. on 19.05.2023, accused was again absent. Accordingly, coercive process i.e. NBW was issued against the accused through SHO concerned. Thereafter, on 05.06.2023, on appearance of accused/ revisionist, notice U/s 251 Cr.PC was framed against the accused, to which he pleaded not guilty and claimed trial; on that day, Admission/ denial of documents U/s 294 Cr.PC was also recorded and thereafter, matter was fixed for complainant's evidence and arguments on application U/s 143A NI Act; thereafter, 19.08.2023, Counsel for accused/ Revisionist sought an adjournment stating his personal ill health. Then, on next date of hearing i.e. on 13.09.2023, again adjournment was sought on behalf of the accused/ revisionist stating that senior Counsel was not available. Since matter was being delayed due to these adjournments, Ld. MM closed the right of the accused to cross-examine the complainant U/s 145(2) NI Act and listed the matter for S.A. and for arguments on the application U/s 143A NI Act. Thereafter, on 18.10.2023, Ld. MM passed an order vide which an application U/s 143A NI Act (impugned order) of the complainant was allowed.
12. The primary objective of the provision U/s 143A NI Act is to compensate the payee/ complainant during the pendency of trial. In Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 10 of 12 the instant case at hand, it is evident from the perusal of record that adjournments have been sought on behalf of the accused on one pretext or another. Further, Ld. Trial Court was even constrained to close right of the accused to cross-examine the complainant due to adjournments sought by the accused. Moreover, since the accused was not appearing in the Trial Court, even coercive process was issued against the accused to secure her presence and due to the absence of the accused also, the matter got considerably delayed.
In the considered opinion of this Court, Ld. Trial Court has passed the impugned order vide which interim compensation is directed to be paid to the complainant, keeping in view the spirit of section 143A of NI Act.
13. Ld. Counsel for the revisionist has argued that the revisionist/ accused has already paid Rs.9,00,000/- to the respondents in cash. This alleged defence of the revisionist can only be proved during the trial. However, in the present revision petition, the scope of this Court is confined to determine whether there is any error, illegality or impropriety in the impugned order.
14. Ld. Counsel for the revisionist has also argued that the Ld. MM has failed to consider that the provision U/s 143A NI Act is not mandatory in nature and is discretionary. This argument raised by Ld. Counsel for the revisionist does not hold any water since perusal of the impugned order reveals that Ld. MM has observed by Ld. MM that :-
"The word 'may' herein shows that a discretion is vested in the trial Court not only in regard to the quantum of interim compensation but also Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 11 of 12 in regard to whether the interim compensation itself be awarded in the specific facts of the case or not. Therefore, the Court is not bound to order interim compensation in all the cases to the complainant".
Therefore, it is pellucid that Ld. Trial Court/ Ld. MM has duly appreciated the settled position of law that the provision of section 143A NI Act is an enabling provision which is directory in nature and that the Court is not bound to grant interim compensation in all cases. Needless to state that the discretion conferred needs to be exercised judiciously after applying judicial mind and not arbitrarily.
15. In view of the above discussion, the impugned order dated 18.10.2023 of Ld. MM vide an application U/s 143A NI Act of the complainant/ respondent was allowed, has been passed within the canons of section 143A NI Act and it is a well reasoned order. Impugned order does not suffer from any error or illegality. The facts and circumstances of the present matter, as discussed above, do not call for any interference in the order dated 18.10.2023 passed by Ld. MM (NI Act), Shahdara, Karkardooma Courts, in exercise of revisional jurisdiction by this Court since there is no error in the impugned order. Accordingly, the present revision petition is dismissed and the impugned order of Ld. Trial Court is hereby, upheld.
Revision file be consigned to Record Room. Copy of this order with Trial Court Record be sent to Learned Trial Court for necessary intimation.
Announced and dictated in the open Court on 06.03.2024.
(SURABHI SHARMA VATS) Addl. Sessions Judge-04 (Shahdara) Karkardooma Courts, Delhi.
Crl. Rev.344/2023 Priya Aggarwal Vs. Bharti Sharma Page 12 of 12