Delhi District Court
Vijay Israni vs Kapil Aggarwal on 1 March, 2024
IN THE COURT OF SH. LOVLEEN
ADDL. SESSIONS JUDGE03
SAKET COURTS, NEW DELHI
DLSE010116052022
CR Rev No. 527/2022
ARISING OUT OF CT CASE NO. 40594/2019 TITLED AS KAPIL
AGGARWAL VS VIJAY ISRANI
1. VIJAY ISRANI
S/O DIRECTOR ISRANI BUILDWELL PVT LTD
S-12, GREEN PARK (MAIN)
NEW DELHI - 110016 ........Revisionist
versus
1. SH. KAPIL AGGARWAL
S/O LATE RAMESH KUMAR AGGARWAL
R/O A-10, GREATER KAILASH ENCLAVE
NEW DELHI- 110016 ............Respondent
Date of institution : 12.12.2022
Date of Reserving judgment : 25.01.2024
Date of Pronouncement : 01.03.2024
CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 1/12
JUDGMENT
1. This is a revision petition filed u/s 397 Cr.P.C against the order dated 30.06.2022 passed by the court of Ld. Metropolitan Magistrate -04, (NI Act), South-East District in CC No. 40594/2019 titled as Kapil Aggarwal vs Vijay Israni whereby an application moved by respondent herein for grant of interim compensation u/s 143 A NI Act was allowed and it was ordered that the revisionist herein shall pay an amount of Rs. 12,60,000/- to respondent herein as interim compensation. Oral submissions have been advanced by both the parties. For the sake of convenience the revisionist herein shall be referred to as 'the accused' and the respondent herein shall be referred to as 'the complainant'.
GROUNDS
2. The grounds cited by the revisionist are as under:-
A. Because the impugned order passed by the Ld. MM, with utmost respect to the Ld. MM, is, without assigning any reason.
B. Because the impugned order is bad in law and on facts and liable to be reversed/set aside. The impugned order shall cause a good deal of prejudice to the petitioner.
C. Because the court below failed to apply the judicious mind while passing the impugned order. The propositions and judgments put forth by the petitioner during the arguments were not appreciated and/or even CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 2/12 mentioned.
D. Because the court below filed to appreciate that the statutory and constitutional rights of the accused petitioner cannot be taken away in the aftermath of such harsh and unreasonable order-impugned order for the deposit of the amount.
E. Because the court below failed to appreciate that there is no rationale put forth behind the impugned order. The impugned order is stereotyped and a blatant example of non-application of judicious mind. F. Because the court below committed an error in passing the impugned order for the deposit of the amount instead of expediting the disposal of the main petition. The disposal of the main petition would have separated the chaff from the grains inasmuch as there are sufficient grounds to prove the innocence of the petitioner before the appellate court and expose myth of the falsity of the claim of the respondent.
G. Because the court below erred in failing to appreciate that the cheque/s in question was/were handed over to the respondent no.2 as 'security' with a clear understanding that the same would never be presented much-less without the consent and knowledge of the petitioner.. The fact remains that the said cheque/s were without any existing or subsisting consideration. H. Because the defence of the petitioner ought to be considered while considering the application under CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 3/12 section 143A NI Act. The Court Below failed to appreciate that it was the defence of the petitioner that there was no liability and that the cheques in question were misused by the respondent. The relief under section 143 A being discretionary, the Ld Court below ought to have allowed the cross examination of the respondent before considering the application. The Collaboration agreement which formed the bais of the complaint was not executed between the petitioner and the respondent but was executed with Israni Buildwell of which the respondent is the director. Israni buildwell has not been impleaded in the complaint.
I. Because the court below erred in the Judgment in LGR Enterprises in its true perspective and wrongly applied the same to the facts of the case. In the present case there are no overwhelming material on record from which the enforceable debt or liability is borne out against the accused. It is not the case where the petitioner was not wanting to cross examine the respondent. The Ld Court below committed an error in law in holding that the since the application under section 145(2) was allowed, the petitioner had a prima facie defence. If it was not so then the case ought to have been treated as a summary trial case and there was no need to allow the application itself.
J. Because the court below erred in failing to appreciate recent judgments of the Hon'ble Supreme CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 4/12 court diluting the rigors of Sections 143A & 148 Negotiable Instruments Act, as the said provisions have been considered to be quite harsh and unreasonable on an accused.
Κ. Because the court below erred in arbitrarily and whimsically reading and interpreting the word 'may' as 'shall'. The language of the provisions of Section 143A & 148 Negotiable Instruments Act is plain and no other meaning or interpretation could have been given thereto. The provisions of Section 143A & 148 Negotiable Instruments Act are merely directory in nature and not mandatory.
L. Because the court below ought to have appreciated that for exercising the discretionary or directory jurisdiction, the court below was expected to appreciate totality of circumstances.
M. Because the court below failed to appreciate that the direction for deposit is quite harsh and illegal and further the same is not substantiated from the records of the court below.
N. Because the court below failed to appreciate that the petitioner has already pleaded the financial constraints and thus, not in a position to deposit the directed amount.
O. That under the facts and circumstances of the case, the impugned order is liable to be set-aside inter- alia on the grounds as stated above.
CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 5/12 LAW GOVERNING THE ISSUE
3. 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 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."
4. In JSB CARGO and Freight forwarder (P) Ltd vs State 2021 CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 6/12 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 a recent judgment passed by Hon'ble High Court of Bombay 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 and it was held that the provision u/s. 143A of Negotiable Instruments Act is directory and not mandatory.
5. 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 CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 7/12 non-bailable 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."
6. 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.
FACTS OF THE CASE
7. As per TCR, the basic facts leading to the filing of the present complaint are that the Complainant's father Late Sh.Ramesh Kumar Agarwal, Dr. Karan Marya, Dr. (Mrs.) Geetanjali Marya and Mrs Monika Rawat being joint owners of plot bearing no: 109, Block 'S', Greater Kailash, Part-II, New Delhi 110048 measuring 300 sq yds (for short the "said property") had entered into a Collaboration Agreement executed on 18.09.2013 with M/s Israni Buildwell Pvt. Ltd of which the Accused is one of the Directors and signatories to the said Collaboration Agreement. That under the said Collaboration Agreement the company of the Accused namely M/s Israni Buildwell Pvt. Ltd. were to construct a building, at the CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 8/12 said property, comprising of basement, stilt, Ground, first, second and third floors which were to be owned by the above named persons, floor-wise. That during the course of the transaction the father of the Complainant, Late Sh.Ramesh Kumar Agarwal, passed away and the Complainant became the sole owner of his fathers share in the said property. That the Accused accepted the Complainant as one of the joint owners. That it was agreed that the second floor was to be the property of M/s Israni Buildwell Pvt. Ltd. to be sold by M/s Israni Buildwell Pvt. Ltd. through the Accused as the constituted attorney of the owners. That acting upon the power of attorney executed on 17.06.2016, which was also signed by the Complainant, being one of the joint owners, the Accused sold off the said property. That under the said Collaboration Agreement a sum of Rs. 1,29,00,000/- (Rupees One Crore & Twenty Nine lakhs only) was to be distributed to the said joint owners of which a sum of Rs. 87,30,000/- (Rupees Eighty Seven lakhs & Thirty thousand only) came to the share of the Late Sh.Ramesh Kumar Agarwal. That a sum of Rs. 3,00,000/- was paid to Late Sh.Ramesh Kumar Agarwal leaving a balance of Rs. 84,30,000/- (Rupees Eighty Four lakhs & Thirty thousand only) to be paid at a later stage. That after great deal of persuasion M/s Israni Buildwell Pvt. Ltd. completed the said property after a lot of delay and then possession was handed over and a sum of Rs. 84,30,000/- (Rupees Eighty Four lakhs & Thirty thousand only) became due and payable. That the Accused in order to liquidate his liability, issued the duly filled cheques, signed by Accused detailed as under:
Sl No. Cheque No. Date Amount
1. 332933 30.04.2019 Rs. 21,00,000/-
CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 9/12
2. 332934 31.05.2019 Rs. 21,00,000/-
3. 332935 30.06.2019 Rs. 21,00,000/-
4. 332936 30.07.2019 Rs. 21,00,000/-
Total Rs. 84,00,000/-
The above said cheques were dishonored upon presentation for the reason 'Account closed'. Statutory notice was got issued by the complainant against the accused, demanding the sums due against the said cheques. However, the accused refused to make the payments due under the said cheques. Hence, the above mentioned compliant was filed by the complainant against the accused u/s 138 NI Act.
8. During the course of the proceedings in the said complaint, the above mentioned application u/s 143 A NI Act was moved by the complainant and vide the impugned order dated 30.06.2022 the Ld. Trial Court was pleased to award interim compensation to the complainant. The reasoning given by the Ld. Trial Court while passing the impugned order is reproduced below for ready reference:
7. "It is pertinent to mention here that the accused in his defence recorded u/s 251 7. Cr.P.C have simply stated that the cheque in question is not issued by me. However, he admits that he has signed the cheque in question. Even in oral submissions on behalf of accused, same has been emphasized that cheque in question bears the signature only.
In my considered opinion the accused has not taken any specific defence and the defence that the cheque in question is not issued by him is a matter of trial. Importantly, at this stage when the interim compensation has to be assessed only requirement is CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 10/12 to keep whether there is a prima facie case or not since the merits of the case will be decided at the conclusion of the trial.
8. The contention that since the oral application of the accused u/s 145(2) N. I. Act has been allowed which implies that accused has a prima facie defence, therefore, this application should be declined is untenable and devoid of any merit.
9. After considering the aforesaid plea of defense and the material on record, this court is of the considered view that there is prima-facie material (at this stage) for allowing the application u/s 143A N. I. Act in favour of the complainant. Therefore, this Court deems it fit to award an interim compensation to an extent of 15% of the cheque amount i.e. Rs. 12,60,000/-. Accordingly, the accused is directed to pay an amount of Rs.12,60,000/- to the complainant within 60 days from today. In case of acquittal of the accused, the amount paid as interim compensation shall be recoverable in terms of 143A (4) N.I. Act.
Discussion
9. A bare perusal of the impugned order reflects that the Ld. Trial court has considered all the pleadings and the records available before him. In response to the case put up by the complainant, the accused, at the stage of framing of notice u/s 251 CrPC, has simply pleaded not guilty while accepting that the cheques bear his signatures. The plea of defence put forth by the accused is that the cheques in question were not issued by him. Apparently, the accused is taking contradictory stands even at the stage of framing of notice u/s 251 CrPC. The same is sufficient to assume at this stage that the accused does not have any tenable defence to make. A Prima facie case is indeed made out against the accused for the exercise of CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 11/12 jurisdiction under Section 143 A NI Act. 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.
10. TCR be sent back along with the copy of this judgment. Revision file be consigned to Record Room as per rules.
Digitally signed by LOVLEEN LOVLEEN Dictated and Announced Date:
2024.03.01 13:59:11 in open Court on 01.03.2024 +0530 (Lovleen) ASJ-03 (South East) Saket Courts, Delhi/01.03.2024 CR Rev No. 527/2022 Vijay Israni vs Kapil Aggarwal 12/12