Himachal Pradesh High Court
Mukesh Kumar vs Raman on 15 May, 2023
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MMO No. 264/2023 .
Decided on: 15.05.2023
Mukesh Kumar ....Petitioner
Versus
Raman ...... Respondent
.......................................................................................... Coram The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
For the petitioner : r Mr. Munish Kumar, Advocate.
For the respondent : Mr. Sumit Himalvi, Advocate vice
Mr. R.S. Chandel, Advocate.
Jyotsna Rewal Dua, J
In proceedings initiated by the respondent under Section 138 of the Negotiable Instruments Act (in short the Act), learned Trial Court vide order dated 05.08.2022 directed the petitioner (accused) to pay 10% of the cheque amount as interim compensation. The petitioner did not comply with this order.
Consequently, learned Trial Court on 14.11.2022 ordered for issuance of warrant of realization of the amount against property of the petitioner. Feeling aggrieved against the order dated 05.08.2022 and the consequent proceedings/orders arising out of the said order, petitioner has instituted this petition.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 19/05/2023 20:29:59 :::CIS 22. Facts & Submissions 2(i)(a) Learned counsel for the petitioner stated that the .
petitioner became aware of proceedings pending against him under Section 138 of the Act, when bailable warrants were issued to him by the learned Trial Court for his appearance on 05.08.2022. Petitioner accordingly appeared before the learned Trial Court on 5.8.2022. This was petitioner's first appearance before the learned Trial Court. On that very day, learned Trial Court directed him to pay 10% of the cheque amount as interim compensation. The petitioner could not comply with the aforesaid direction. Learned Trial Court on 14.11.2022 ordered for issuance of warrant of realization against the property of the petitioner for recovery of the interim compensation.
2(i)(b) Learned counsel for the petitioner contended that no opportunity whatsoever was given by the learned Trial Court to the petitioner before ordering payment of interim compensation amount and fixing it at 10% of the cheque amount. No reason was given for directing to pay 10% of the cheque amount as interim compensation.
Hence, prayer has been made for setting aside the order dated 05.08.2022 alongwith consequent proceedings based on this order.
2(ii) Learned counsel for the respondent defended the impugned order and submitted that under Section 143A of the Act, it was within the domain of the learned Trial Court to have ordered interim compensation not exceeding 20% of the cheque ::: Downloaded on - 19/05/2023 20:29:59 :::CIS 3 amount. Learned Trial Court has only ordered the petitioner to pay 10% of the cheque amount as interim compensation. No illegality has .
been committed by the learned Trial Court by passing the said order.
Accordingly, prayer was made for dismissing the petition.
3. I have heard learned counsel for the parties and gone through the case record.
4. Section 143A of the Act delineates the power of the learned Trial Court to grant interim compensation. The said section reads as under:-
"143A. Power to direct interim compensation (1) Notwitstanding 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.
(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 years, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be ::: Downloaded on - 19/05/2023 20:29:59 :::CIS 4 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.]"
Section 143A(1) states that the Court may order the accused to pay interim compensation to the complainant. The word used in this sub-section is 'may'. It is not must that the Court has to order for payment of interim compensation in every complaint. It is the discretion of the Trial Court whether to order for payment of interim compensation or not. That power under Section 143(A)(1) is discretionary is also clear from reading of other provisions. In case, learned Trial Court is inclined to exercise discretion for ordering payment of interim compensation amount, then role of Section 143A(2) comes into play. This sub-section provides that any amount between 1% to 20% of the cheque amount can be directed to be paid as interim compensation amount. The interim compensation so ordered under Sections 143A(1) & (2), has to be paid within the period stipulated under Section 143A(3). Failure to pay the interim compensation amount attracts penal provisions under Section 143A(5).::: Downloaded on - 19/05/2023 20:29:59 :::CIS 5
Thus from a holistic reading of Section 143A of the Act, it becomes apparent that power given to the Court to order payment .
of interim compensation amount, is discretionary. It is not mandatory for the Court to order the accused to pay interim compensation.
However, once the Trial Court decides for ordering payment of interim compensation, the maximum cap that can be imposed is 20% of the cheque amount. Directing the accused to pay interim compensation between 1% to 20% of the cheque amount is another discretionary power of the Court. The discretionary powers be it for deciding to direct the accused to pay interim compensation amount or to order him to pay specified percentage of cheque amount, towards interim maintenance has to be exercised in accordance with law after considering all attending parameters. The learned Trial Court was to give a reasonable opportunity to the accused-petitioner on the interim compensation to be awarded against him. Without affording any opportunity to the petitioner and without giving any reason for awarding 10% of the interim compensation, learned Trial Court has simply ordered the petitioner to pay 10% of the cheque amount as interim compensation. This course is not in consonance with the scheme of the Act. The order should indicate application of mind by the Court to the facts and relevant factors while awarding interim compensation & extent thereof. The impugned order does not disclose any application of mind. It straightway directed the petitioner ::: Downloaded on - 19/05/2023 20:29:59 :::CIS 6 to deposit 10% of the cheque amount as interim compensation that too at his first appearance in the Court. Hence for aforesaid reasons, .
the present petition is allowed. The impugned order dated 05.08.2022 is set aside alongwith consequent proceedings arising out of it. The parties through their respective learned counsel are directed to appear before the learned Trial Court on 13.06.2022. Learned Trial Court shall consider the matter for the grant of interim compensation afresh in light of above observations and in accordance with law.
Pending miscellaneous application(s), if any, shall also stand disposed of.
Jyotsna Rewal Dua Judge 15th May, 2023(Rohit) ::: Downloaded on - 19/05/2023 20:29:59 :::CIS