Jammu & Kashmir High Court - Srinagar Bench
Shabir Ahmad Ganie vs Abdul Rahim Mir on 11 May, 2021
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
S. No. 103
Before Notice
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
CM (M) no. 65/2021
CM no. 1961/2021
(Virtual mode)
Shabir Ahmad Ganie
.... Petitioner(s)
Through: Mr Tawfiq H. Khawja, Advocate
V/s
Abdul Rahim Mir
... Respondent(s)
Through:
CORAM:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge
ORDER
11.05.2021 On the complaint filed by the respondent, Abdul Rahim Mir, under section 138 of the Negotiable Instruments Act, 1888, the Judicial Magistrate 1st Class (Special Mobile Magistrate Passenger Tax Shops & Establishment Act & Electricity) Srinagar, for short learned Magistrate, in terms of order dated 5th March, 2021, for short 'impugned order' while issuing process, to be executed through SHO of police station concerned, against the petitioner for his appearance has impressed upon the petitioner/ accused that he can make an application for compounding of an offence alleged against him on the 1 st or the 2nd hearing of the case. The said direction has been directed to be incorporated in the summon also in compliance to the judgment of Hon'ble Supreme Court of India rendered in criminal No. 963/2010 titled Damodar S. Prabhu v/s Sayed Babalal H. The petitioner has further been directed to pay 20% of the cheque amount of Rs. 24.00 lacs i.e. 4,80,000/- by or before the next date of hearing. It has further been directed that the applicant/ complainant will file an affidavit that in case the accused will win the case in that eventuality the applicant/ complainant will pay 20% amount back to the accused along with interest.
Aggrieved of the impugned order, the petitioner challenges the same on the grounds detailed out in the petition with particular reference of the impugned order being against the mandate of Section 143-A of the Negotiable Instruments Act, 1881, for short N. I. Act.
AMJAD AHMAD LONE 2021.05.12 14:37 I attest to the accuracy and integrity of this documentHeard learned counsel for the petitioner; perused the record and considered the matter.
The Court does not require to go into the depth of the matter as the only question raised for challenging the order impugned has reference to non-adherence to the clause a of Section 143-A of the N. I. Act, which being relevant is taken note of hereunder, thus:
"[143-A. 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...."
While reiterating the stand taken in the petition for relief claimed, the learned counsel for the petitioner submits that the trial Magistrate has erred in law by directing 20% payment of the cheque amount to the respondent/ complainant at the motion hearing without petitioner having pleaded not guilty to the accusation made in the complaint which is the requirement of clause (a) of the Section 143-A of the N. I. Act.
The plaint reading of the aforesaid provision of law makes it mandatory for the Magistrate that while framing opinion for issuance of process under section 143-A of the N. I. Act, the payment of interim compensation to the complainant can be directed only after the accused pleads not guilty to the accusation made in the complaint. But in the present case, the accused had not appeared before the court and plead not guilty to the charge, yet the trial Magistrate directed for payment of 20% interim compensation which goes against the mandate of law.
In view of above, the learned Trial Magistrate has erred in law and caused miscarriage of justice by passing the impugned order as the same goes against the very roots of the relevant provision of law. Therefore, while exercising the power vested with this court in terms of Section 482 of the Criminal Procedure Code, the order impugned to the extent of award of 20% interim compensation is set-aside with a direction to the trial magistrate to adhere to the relevant provisions of law while adjudicating upon the case in hand.
The Judicial Magistrates, while entertaining complaints under section 138 of the Negotiable Instruments Act, 1888, must take recourse to the relevant provisions of law, while issuing process against the accused and ensure that the requirements as contemplated under section 143-A of the N. I .Act are fulfilled and only AMJAD AHMAD LONE afterwards the interim compensation upto 20% can be awarded. The illegality 2021.05.12 14:37 I attest to the accuracy and integrity of this document committed in the instant case by the Trial Magistrate is not only illegal but unbecoming too. Let this case serve as an example for all the learned Magistrates to minutely examine the provisions of law before issuing any directions.
Registry shall serve a copy of this Order upon the learned Trial Magistrate who passed the order, at the place of present posting with a note of caution that henceforth the Trial Magistrate shall remain careful.
Disposed of on the above lines.
(Ali Mohammad Magrey) Judge Srinagar 11.05.2021 Amjad Lone PS Whether the order is speaking: Yes/ No Whether the order is reportable: Yes/No AMJAD AHMAD LONE 2021.05.12 14:37 I attest to the accuracy and integrity of this document