Andhra Pradesh High Court - Amravati
Mahesh, vs Saileela Enterprises on 10 December, 2019
Author: Cheekati Manavendranath Roy
Bench: Cheekati Manavendranath Roy
IN THE HIGH COURT OF ANDHRA PRADESH: AT AMARAVATI
*****
CRIMINAL PETITION No.7112 OF 2019
Between
Mahesh, aged about 50 years,
Managing Partner, Maylari Agro Products Limited,
Site No.38/18, 1st Floor, 2nd Cross, RMC Yard,
Near Fire Station, Uashwanthpura,
Bangalore ... Petitioner/Petitioner/Appellant
and
1. Saileela Enterprises,
Represented by its Proprietor
Bandi Obul Reddy, S/o. B.Picchireddy,
Aged about 68 years, R/o. D.No.6-31-A,
1st Floor, Dr. Girija Street,
Railway Kodur Town, YSR Kadapa
and another
.. Respondents
DATE OF JUDGMENT PRONOUNCED: 10-12-2019
THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
1. Whether Reporters of Local Yes/No
newspapers may be allowed to see
the Judgments?
2. Whether the copies of judgment Yes/No
may be marked to Law
Reports/Journals?
3. Whether Their Ladyship/Lordship Yes/No
wish to see the fair copy of the
Judgment?
_______________________________________
CHEEKATI MANAVENDRANATH ROY, J.
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* THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
+ CRIMINAL PETITION No.7112 OF 2019
% DATE: 10-12-2019
# Mahesh, aged about 50 years,
Managing Partner, Maylari Agro Products Limited,
Site No.38/18, 1st Floor, 2nd Cross, RMC Yard,
Near Fire Station, Uashwanthpura,
Bangalore ... Petitioner/Petitioner/Appellant
Vs.
$ 1. Saileela Enterprises,
Represented by its Proprietor
Bandi Obul Reddy, S/o. B.Picchireddy,
Aged about 68 years, R/o. D.No.6-31-A,
1st Floor, Dr. Girija Street,
Railway Kodur Town, YSR Kadapa
and another
.. Respondents
! Counsel for the petitioner : Sri N.Ashwani Kumar
^Counsel for respondent No.1 : Y. Mahalakshmi
Counsel for respondent No.2 : Additional Public Prosecutor
< Gist:
Head Note:
? CASES REFERRED: NIL.
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THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY
CRIMINAL PETITION No.7112 OF 2019
ORDER:-
Assailing the Order dated 16-07-2019 of the Judicial Magistrate of First Class, Railway Kodur, passed in Crl.M.P.No.972 of 2019 in C.C.No.105 of 2019, whereby, a condition was imposed at the time of granting bail directing the petitioner to deposit 20% of the cheque amount in the Court within two months of his release on bail, this Criminal Petition is filed.
2. The petitioner is the accused in C.C.No.105 of 2019 on the file of Judicial Magistrate of First Class, Railway Kodur. He is being prosecuted for the offence punishable under Section 138 of Negotiable Instruments Act (for short "N.I. Act"). After the trial Court took cognizance of case against him and issued summons to him for his appearance in the Court, it appears that he has refused to receive the summons. Therefore, Non- Bailable Warrant (N.B.W.) was issued against him to secure his presence in the Court. The said N.B.W. was executed and the petitioner was arrested and he was produced before the trial Court. Thereafter he was remanded to judicial custody. When he has applied for bail before the trial Court, the trial Court by its order dated 16.07.2019 enlarged him on bail on certain conditions. As per condition No.2, he was directed to deposit 20% of the cheque amount before the Court within two (02) months from the date of his release on bail.
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3. The petitioner now seeks to set aside the said condition No.2 imposed against him at the time of granting bail to him.
4. Heard learned counsel for the petitioner, learned counsel for the 1st respondent and the learned Additional Public Prosecutor.
5. Learned counsel for the petitioner would submit that on the assumption that the newly inserted Section 143A in the Negotiable Instruments Act, which came into force on 02.08.2018, enables the trial Court to direct or order the drawer of the cheque to pay interim compensation to the complainant not exceeding 20% of the cheque amount that the present condition was imposed by the trial Court at the time of granting bail to the petitioner. Therefore, he would submit that even as per the said amendment, it is only when the accused pleads not guilty in a summary trial or in summons case or when upon a framing of a charge in any other case, the stage of directing the accused to pay interim compensation would arise. In the instant case, the said stage has not arisen, therefore the impugned condition is illegal and thereby prayed to set aside the same. He would also submit that as the cheque amount is Rs.22,00,000/-, 20% of cheque amount would be Rs.4,00,000/- and it is onerous condition for the petitioner to comply with the same and on that ground also, he would pray to set aside the said condition.
6. Per contra, learned counsel for the 1st respondent/ complainant, while vehemently opposing the petition, she would submit that the trial Court did not impose the said condition while invoking Section 143A of amended provision of N.I. Act 5 and the said condition was imposed for the purpose of granting bail to him and as it is part of the bail conditions imposed against the petitioner, he is bound under law to comply with the same and deposit 20% of the cheque amount before the Court. Therefore, she would pray for dismissal of the petition.
7. Learned Additional Public Prosecutor supported the contention of the learned counsel for the 1st respondent and he would also submit that the petitioner has to comply with the bail conditions and thereby prayed for dismissal of the petition.
8. Perused the record.
9. As can be seen from the record, after cognizance of the case was taken under Section 138 of the N.I. Act, the learned Magistrate issued summons to the petitioner. It appears that the petitioner refused to take the said summons. Therefore, N.B.W. was issued against him to secure his presence in the Court. On execution of the said N.B.W., the petitioner was arrested and he was produced before the trial Court. Thereafter, he was remanded to judicial custody. When he has filed application for grant of bail, the trial Court, by the impugned order dated 16.07.2019, granted bail to him on certain conditions. The trial Court has directed the petitioner to deposit 20% of the cheque amount before the Court within two (02) months from the date of his release on bail as per condition No.2 of the order granting bail to him.
10. The petitioner assails the legality and validity of the said condition/direction in this criminal petition. 6
11. Section 437 (3) enumerates the offences in which conditions can be imposed by the Court at the time of granting bail. Offences covered by Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offences, are covered by the said section. What are the conditions to be imposed at the time of granting bail pertaining to the said offences are also specified in conditions (a) to (c) in the said section. The present offence under Section 138 of the N.I. Act is not covered by the said provision. Similarly, the present condition of directing to pay 20% of the cheque amount is also not covered by the conditions specified therein. Although the section has conferred discretion on the Court to impose any other conditions also, they also pertain to the offences mentioned in the said section.
12. Since the impugned condition was imposed at the time of granting bail to the petitioner, who is an accused in a case punishable under Section 138 of the N.I. Act, it is obvious that presumably on the assumption that the newly inserted Section 143A of the N.I. Act which came into force on 02-08-2018 enables the Court to order deposit 20% of the cheque amount, the learned Magistrate has imposed the said condition.
13. Therefore, in order to ascertain whether any such condition can be imposed at the stage of granting bail or not, it is expedient to go through the newly inserted Section 143A of the N.I. Act. The section to the extent which is relevant in the context reads thus, ''143A. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying an offence 7 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;
(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) ....................
(5) ....................
(6) ....................".
14. Since the learned Magistrate ordered to deposit 20% of the cheque amount as contemplated under clause (2) of Section 143A of the Act and as two months time i.e. 60 days time was given as envisaged in clause (3) of Section 143A of the Act, it is clear that invoking this newly amended Section 143A of the Act, he has given the said direction. Therefore, it is to be now seen whether any such direction under Section 143A can be given at the stage of granting bail or not.
15. A plain reading of the above amended provision makes it manifest that as per clause (a) of Section 143A (1) of the N.I. Act, the Magistrate can order to deposit 20% of cheque amount in a summary trial or in a summons case, where the accused pleads not guilty to the accusation made in the complaint and in any other case upon framing of charge. So, it is clear from Section 143A of the Act, that before the accused pleads not guilty in summary trial or in summons case or before framing a charge in any other case, the Court is not empowered to order the accused to deposit 20% of the cheque amount.
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16. Now it is relevant to note that Section 143 of the N.I. Act envisages that notwithstanding anything contained in the Code of Criminal Procedure, all offences under Section 138 of the N.I. Act shall be tried as per the provisions under Sections 262 to 265 of Cr.P.C. They relate to summary trials under Chapter XXI of Cr.P.C. Section 262 thereof, ordains that, in trials relating to the case under this Chapter XXI, the procedure specified in the Code, for trial of summons case shall be followed. Therefore, it is now manifest that even in cases of summary trials, the procedure prescribed for trial of summons case is to be followed. Chapter XX of Cr.P.C. deals with trial of summons cases. It starts with Section 251 Cr.P.C. Section 251 Cr.P.C. contemplates that, when the accused appears in a summons case, or is brought before the Magistrate, the particulars of the offence of which he is accused shall be stated to him, and he shall be asked whether he pleads guilty or has any defence to make. This case is not converted into a warrant case. Therefore, the procedure contemplated for trial of the summons case only applies as of now to the case on hand. So, the question of pleading guilty or not as required under newly inserted Section 143A of the N.I. Act arises only when the substance of the accusation is explained to the petitioner under Section 251 Cr.P.C. in the trial Court. That stage has not arisen in this case to invoke the amended provision of Section 143A of the N.I. Act. Therefore, imposing the said condition to deposit 20% of the amount at the time of granting bail, in the considered view of this Court, is clearly unsustainable under law.
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17. In the result, this Criminal Petition is allowed and condition No.2 in the impugned order dated 16-07-2019 passed in Crl.M.P.No.972 of 2019 in C.C.No.105 of 2019 on the file of Judicial Magistrate of First Class, Railway Kodur, is hereby set aside.
Miscellaneous petitions, pending if any, in this Criminal Petition, shall stand closed.
_____________________________________________ JUSTICE CHEEKATI MANAVENDRANATH ROY Date : 10-12-2019 Note:
L.R. copy to be marked. (B/o) AK/ARR 10 THE HON'BLE SRI JUSTICE CHEEKATI MANAVENDRANATH ROY CRIMINAL PETITION No.7112 OF 2019 Date : 10-12-2019 ARR