Delhi District Court
Anil Kumar @Toni vs State And Anr on 27 August, 2024
IN THE COURT OF SH. PURSHOTAM PATHAK, ASJ-05,
SOUTH DISTRICT, SAKET COURTS : DELHI
Cr. Rev 218/2024
CNR No. : DLST01-005282-2024
Date of Institution 27.05.2024
&
Cr. Rev 219/2024
CNR No. : DLST01-005366-2024
Date of Institution 28.05.2024
Anil Kumar @ Toni
S/o Late sh. Nomi Chand,
R/o H. No. 51A, Arjun Nagar,
Safdarjung Enclave, New Delhi-110029.........REVISIONIST
VERSUS
1. STATE OF NCT OF DELHI
2. Shyam Sunder
S/o Late Sh. Mahinder Singh
R/o H. No. 193, Adhikari Mohalla,
Maidan Garhi, New Delhi ........ RESPONDENTS
ARGUMENTS HEARD ON : 05.07.2024
DATE OF JUDGMENT : 27.08.2024
JUDGMENT
1. Vide this common judgment I shall dispose of instant two revision petitions filed by the revisionist under Section 397/399 of Cr.P.C., arising out of complaint case bearing CT No.10487/2019 and CT No.13265/19, both titled as Sh. Shyam Sunder Vs. Anil Kumar @ Toni, against the impugned Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK order dated 20.04.2024, passed by Ld. MM-01 (NI Act), PATHAK Date:
2024.08.27 15:54:29 +0530 South, Saket. Vide the impugned order the application u/s Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 1 of 14 143A NI Act of the complainant for grant of 20% of the cheque amount as interim compensation has been partly allowed by Ld. MM, with directions to the accused to pay a sum of Rs.1,50,000/- i.e. 10% of the cheque amount to the complainant against due acknowledgment within a period of 60 days from passing of order.
2. The facts in brief of the revision are that on the assurance of revisionist/accused, complainant/respondent no. 2 gave loan of Rs.30,00,000/-, on 13.04.2018 to Sh. Sandeep Chhatwal, stated to be good friend of accused and on 24.01.2019, the accused informed the complainant that Sh. Sandeep Chhatwal is not traceable. Being the surety, accused took over the liability of Sandeep Chhatwal and assured to return the said amount to the complainant. In this regard, he signed an undertaking dated 24.01.2019, as per which he acknowledged his liability of payment of Rs.30,00,000/- to the complainant. He also issued two cheques for an amount of Rs.15,00,000/- each with assurance that same shall be encashed on presentation. However, when complainant presented the said cheques for encashment on 05.03.2019 and 25.03.2019 with his banker, same returned dishonoured with remarks 'funds insufficient' vide cheque return memos dated 06.03.2019 and 26.03.2019. Thereafter, Complainant/respondent issued the legal notice dated PURSHOTTAM 29.03.2019 and since accused did not pay the cheque amount, PATHAK the complainant filed the case under section 138 NI Act Digitally signed by PURSHOTTAM against the accused.
PATHAK Date: 2024.08.27 15:54:50 +0530Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 2 of 14
3. Summons were issued vide order dated 16.05.2019 and 07.06.2019 and accused appeared. Thereafter, on 23.03.2021 notice u/s 251 Cr.P.C. was framed upon the accused in both the cases.
4. After framing of notice, the complainant filed an application u/s 143A NI Act on 06.05.2022. The complainant through this application sought compensation to the extent of 20% of the cheque amount on the following grounds:-
a) that the accused had not pleaded guilty and claimed trial on notice u/s 251 Cr.P.C.
b) that the trial should begun only after the compliance of Section 143A NI Act by the accused on making the payment of 20% of cheque amount.
5. Reply was filed by the accused on 13.09.2022 in which he took the following grounds:-
a) that the accused has not taken any amount from the complainant and he has no liability towards the complainant.
b) that the accused has never represented to the complainant that Sh. Sandeep Chhatwal is a good friend of him and is in a dire need of money
c) that and the accused had not induced the complainant to give a loan of Rs. 30,00,000/- to Sh.
Sandeep Chhatwal at his assurance and guarantee Digitally signed by PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
and accused had also not assured the complainant 2024.08.27 that if Sh. Sandeep Chhatwal will not return the said 15:54:55 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 3 of 14 money to the complainant, then the accused shall return the said amount of Rs.30 lakhs to the complainant.
d) That the complainant had not given an amount of Rs. 30 lakh to Sh. Sandeep Chhatwal through the accused on 13.04.2018 and the accused had not given any representation to the complainant.
e) that neither the accused had informed to the complainant on 24.01.2019 that Sh. Sandeep Chhatwal is not traceable nor he told the complainant that he has apprehension that Sh.
Sandeep Chhatwal has flown out of the country and the accused was also not the guarantor for the amount given by the complainant to Sh. Sandeep Chhatwal.
f) that the complainant/ respondent had taken the written and signed undertaking on 24.01.2019 forcefully from the accused and cheque bearing no. 157393 dated 15.02.2019 and cheque bearing no. 157394 dated 15.04.2019 for an amount of Rs.15 lakh each were also taken forcefully by the complainant.
g) that the complainant in order to extort money from the accused, has filed the false case before the Digitally Ld. Trial Court.
signed by
PURSHOTTAM
PURSHOTTAM PATHAK
PATHAK Date:
2024.08.27
15:55:00
+0530
Cr. Rev 218/2024 & Cr. Rev 219/2024
Anil Kumar @ Toni Vs. State and Anr. Page 4 of 14
6. Vide the impugned order, the trial court partly allowed the application under Section 143 A NI Act. The relevant part of impugned order is as under:-
"It is also relevant to mention that the accused has only denied his capacity of a guarantor of the borrower i.e. Sh. Sandeep in the present case. It is not the defence of the accused that the liability of offence u/s 138 NI Act cannot be fastened upon a guarantor. Even otherwise, it is trite that the guarantor of the offence punishable u/s 138 NI Act. Reliance is placed upon I.C.D.S. Ltd. Vs. Been Shabeer & Anr. [(2002) 6 SCC 426] M/s The Jammu and Kashmir Bank Vs. Abhishek Mittal [2011 SCC Online Del 2444] and vijender Singh Vs. M/s Eicher Motors Limited & Anr [2011 SCC Online Del 2095]."
In view of the aforesaid details discussions, I am of the opinion that it is a fit case for exercise of discretionary powers u/s 143 A NI Act for grant of interim compensation to the complainant. Therefore, considering all the facts and circumstances of this case, this court is inclined to partly allow the prayer of the complainant and it is accordingly directed that the accused shall pay a sum of Rs. 1,50,000/- i.e. 10% of the cheque amount to the complainant against due acknowledgment within a period of 60 days from this order. In the event of acquittal of the accused, the complainant shall be directed to repay the aforesaid amount with interest at all prevailing bank rate as provided u/s 143 (4) of the NI Act."
7. Being aggrieved by the order dated 20.04.2024 accused has preferred this revision petition on following grounds:-
i. that the impugned order passed by the Ld. Trial Court is bad in facts and law and Ld. Trial Court failed to appreciate the facts and the principals of natural justice.
ii. that the impugned order has been passed by the Hon'ble Trial Court in mechanical manner without application of judicial mind.
iii. that the Ld. Trial Court has failed to appreciate the fact PURSHOTTAM that the respondent no. 2 had taken the written and PATHAK signed undertaking on 24.01.2019 forcefully from the Digitally signed by PURSHOTTAM PATHAK Date: 2024.08.27 15:55:05 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 5 of 14 revisionist and that the revisionist had written & signed the undertaking under pressure.
iv. that the cheque bearing no. 157393 and 157394 dated 15.04.2019 for a sum of Rs. 15,00,000/- each, both drawn on Central Bank of India, had also been taken forcefully by the respondent from the revisionist.
v. that the Ld. Trial Court has failed to appreciate the fact that the revisionist had no role to play in the alleged transaction between the respondent no. 2 and Sh. Sandeep Chhatwal and the revisionist has no liability towards the respondents no.2.
8. I have heard Ld. Counsels for both the parties.
9. Trial Court record perused.
10. Ld. Counsel for the accused has contended that the said cheque was issued as a security cheque. He contended that there was no legal enforceable debt or liability against the accused on the date of presentation of the said cheque. He contended that the complainant has not filed any document to demonstrate that there was any legally enforceable debt or liability against the accused in respect of which the said cheque was presented for encashment. He contended that delay in conclusion of the case cannot be a sole ground for seeking interim compensation. He contended that the accused has not caused any delay to the trial of the case. He contended PURSHOTTAM PATHAK that the trial Court has discretion to order interim Digitally signed by compensation under Section 143A NI Act and such discretion PURSHOTTAM PATHAK Date: 2024.08.27 15:55:09 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 6 of 14 can only be exercised on examination of defence of the accused. He contended that the impugned order deserves to be set aside.
11. Ld. Counsel for the complainant contended that the defence of the accused is not relevant for the decision of an application under Section 143A NI Act. He contended that twin requirements for application of 143A NI Act are that the case must be a summon or summary trial and the charge should have been framed and the accused should have pleaded not guilty. He contended that substance of accusations under Section 251 of the Cr.P.C. was put to the accused to which he pleaded not guilty and claimed trial. He contended that pre- requisites required for application under Section 143A NI Act are fulfilled and the complainant was entitled to interim compensation under Section 143A NI Act. He contended that merely because a cheque was issued as security is no ground to avoid liability under NI Act. He contended that the defence of the accused cannot be considered by the trial Court as it would amount to a decision on the merits of the case.
12. Section 143 A NI Act provides for "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
(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.
Digitally (3) The interim compensation shall be paid within sixty days from the signed by PURSHOTTAM PURSHOTTAM PATHAK date of the order under sub-section (1), or within such further period not PATHAK Date:
2024.08.27 15:55:14 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 7 of 14 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."
13. From Section, it is clear that power under Section 143 A NI Act is discretionary power to direct the drawer of the cheque to pay interim compensation to the complainant.
14. A reading of the above provision makes it clear that the Court trying an offence under Section 138 of the Negotiable Instruments Act "may" (emphasis supplied) order the drawer of the cheque to pay interim compensation to the complainant. The provision itself shows that the discretion is vested with the Trial Court to direct interim compensation to be paid by the complainant. It is not necessary that in all cases, the trial Court must necessarily direct the complainant to pay interim compensation and such a direction should be given only on a case to case basis, by taking into consideration the facts of each case.
15. The legislature has intentionally not used the word "shall", PURSHOTTAM PATHAK since it would have prevented the accused persons, even in genuine cases, from defending themselves without paying Digitally signed by PURSHOTTAM PATHAK Date: 2024.08.27 Cr. Rev 218/2024 & Cr. Rev 219/2024 15:55:18 +0530 Anil Kumar @ Toni Vs. State and Anr. Page 8 of 14 20% as interim compensation amount to the complainant. This would have directly affected the fundamental right of an accused person to defend himself in a criminal case. This is the reason why the legislature had thoughtfully used the word "may" under Section 143A(1) of the Negotiable Instruments Act. Therefore, it is not possible to read the word "shall" into the word "may" which is used in the provision.
16. In view of the above finding, the word "may", gives the discretion to the Trial Court to direct the accused to pay interim compensation to the complainant. The exercise of discretion must always be supported by reasons, failing which the exercise of discretion will become arbitrary.
17. Therefore, whenever the trial Court exercises its jurisdiction under Section 143A(1) of the Act, it shall record 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 Digitally signed by cross examine the witnesses and keeps on dragging with the PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.08.27 proceedings by filing one petition after another or the accused 15:55:23 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 9 of 14 person absconds 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 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.
18. In JSB Cargo & Freight Forwarder Pvt. Ltd. & Ors. vs. State & Anr. (supra), Hon'ble High Court of Delhi held as under:
"53. Furthermore, the observations of the learned Trial Court to the effect that even if it be assumed that the provisions of Section 143A of the NI Act, 1881 is discretionary in nature, the Court is still clothed with the powers to grant interim compensation to the complainant after providing sufficient reasons, it is essential to observe that the award of interim compensation in terms of Section 143A of the NI Act, 1881 has to be after providing sufficient reasons and whilst taking the same into account, the determination of interim compensation directed to be paid by the petitioners herein to the extent of the maximum of 20% of the cheque amount to the complainants without even considering the submissions that have been sought to be raised by the petitioners in relation to bank statements of the complainant and without resorting to the provisions of Section 294 of the Cr.P.C., 1973 cannot be held to be within the contours of Section 143A of the NI Act, 1881 to be with sufficient reasons. Furthermore, there are no inherent powers conferred on a criminal court of a Magistrate dehors enabling provisions of a statute."
19. Coming to the facts of present case, the complaint bearing CT No.10487/2019 filed by the complainant was instituted on PURSHOTTAM PATHAK 09.05.2019, wherein the accused was summoned on Digitally signed by 16.05.2019. The complaint bearing CT No.13265/19, filed by PURSHOTTAM PATHAK Date: 2024.08.27 15:55:27 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 10 of 14 the complainant was instituted on 07.06.2019, wherein the accused was summoned on same day i.e. 07.06.2019. Thereafter, the case was listed for appearance of accused and on the very next date of hearing i.e. 27.08.2019, the accused appeared along with his counsel. He appeared on each and every date except 22.01.2020, when non-bailable warrants were issued against him. Although, accused did not appeared in person on 22.01.2020, he was represented by this counsel. Thereafter, due to intervening covid -19 first wave both the the cases were adjourned en-block to 21.11.2020. Notice was framed on 23.03.2021 and application u/s 145 (2) of the accused was allowed on same day. Thereafter, the case was listed for complainant evidence. The matter was again adjourned en-block on various dates due to covid-19 pandemic. During this period the Ld. Counsel for accused regularly joined the proceedings through VC. On 06.05.2022, the applications u/s 143 A were moved which were decided by impugned order dated 20.04.2024. Trial Court has allowed the applications on the ground that NBWs were issued against the accused and cost was also imposed, hence, trial may take substantial time to conclude.
20. The record does not indicate any volitional non-
compliance or deliberate attempt on the part of accused to protract the proceedings. The accused has been regular in appearance and in defending the instant case. Both the parties PURSHOTTAM PATHAK have been duly represented on every date of hearing except Digitally signed by the period of suspension of court functioning due to covid-19. PURSHOTTAM PATHAK Date: 2024.08.27 15:55:31 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 11 of 14
21. In view of the objective behind the insertion of Section 143A NI Act on 01.09.2018, delay caused by the drawers by resorting to delaying tactics to stall decision of cases pertaining to cheques dishonour cases is a relevant consideration. This is not the case where the respondent is protracting the proceedings.
22. Further, complainant has stated that on the assurance and guarantee of accused, complainant gave a loan of Rs.30,00,000/- to Sh. Sandeep Chhatwal that in case Sandeep Chhatwal does not return the money then accused shall return it. Complainant has also stated that on 24.01.2019 the accused informed him that Sandeep Chhatwal is not traceable and being guarantor, the accused took over the guarantee of Sandeep Chhatwal to return the said amount. In this regard the accused voluntarily signed an undertaking dated 24.01.2019 and also issued the cheques in question to the complainant. Whereas the accused in his defence in notice u/s 251 Cr.P.c. has stated that the loan was given to Sandeep Chhatwal and he has no liability towards complainant as he had never taken any loan from him. He stated that the cheques bear his signatures but the cheques in question were taken forcefully from him.
23. Though, there is a presumption in favour of the complainant u/s 138 NI Act, however, the accused is entitled PURSHOTTAM to raise a probable defence that there was no legally PATHAK enforceable debt or liability against him. The accused is Digitally signed by PURSHOTTAM PATHAK entitled to lead evidence or cross examine the complainant to Date: 2024.08.27 15:55:36 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 12 of 14 test the veracity of the case of the complainant. The veracity of the case of the complainant and the defence raised by the respondent can only be decided after taking evidence in the case. The issue whether the accused was liable to pay an amount of Rs.30,00,000/- to the complainant towards the undertaking given by him, which entitled the complainant to fill and present the said cheque for encashment towards discharge of legally enforceable liability can only be adjudicated after trial.
24. Perusal of the record reveals that no case for exercise of discretionary power to grant interim compensation to the complainant is made out. The accused has taken a prima facie plausible defence in the notice of accusation that the loan of Rs.30,00,000/- was taken by Sandeep Chhatwal and not by the accused. It is also not in dispute that at the time when loan was given no MOU was entered into between the parties in regard to re-payment of loan by the accused. The undertaking dated 24.01.2019 is not of prior to the taking of loan but was entered into between the parties when Sandeep Chhatwal failed to return back the alleged loan amount. Moreover, in the notice u/s 251 Cr.P.C the accused has disputed his liability towards the complainant. It cannot be said that the accused has raised the defence with a view to prolong the decision of the case.
25. Thus, in view of the above stated reasons, in the Digitally signed by considered view of this court, the contention of both the PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date:
2024.08.27 parties deserves to be tried as per law and needs to be tested at 15:55:40 +0530 Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 13 of 14 the threshold of the rules of evidence. No summary view can be taken at this nascent stage of trial where even the complainant has not been examined.
26. In view of the aforesaid discussion and for the reasons stated above, the application moved by the complainant under Section 143A NI Act in both the revision petitions are hereby allowed. The impugned order dated 20.04.2024 is set-aside.
27. TCR be sent back to court concerned along with copy of present judgment.
28. Revision petitions be consigned to record room after due Digitally signed by compliance. PURSHOTTAM PURSHOTTAM PATHAK PATHAK Date: 2024.08.27 15:55:45 +0530 ANNOUNCED IN THE OPEN COURT (PURSHOTAM PATHAK) TODAY ON THIS ASJ-05(SOUTH) 27thDAY OF AUGUST, 2024 SAKET COURTS: N.D (This judgment contains total 14 signed pages) Cr. Rev 218/2024 & Cr. Rev 219/2024 Anil Kumar @ Toni Vs. State and Anr. Page 14 of 14