1. This petition by the accused in C.C.No.8053/2021 is directed against the impugned order dated 31.07.2023 passed by the VI Addl. Small Causes Judge, A.C.M.M., Bengaluru under Section 143-A of the Negotiable Instruments Act, 1881 directing the petitioner to deposit 5% of the cheque amount and subsequent impugned order dated 30.12.2024 passed by the Sessions Court in Crl.R.P.No.572/2023 dismissing the revision petition filed by the petitioner.
2. Heard the learned counsel for the petitioner and perused the material on record.
3. A perusal of the material on record will indicate that in the aforesaid proceedings under Section 138 of NI Act, respondent filed an application under Section 143-A seeking direction to the petitioner-accused to deposit interim compensation and for other releifs. The said application was allowed by the trial Court by the impugned order dated 31.07.2023 by holding as under:
"1. Learned counsel for the complainant filed this second successive application U/sec 143A of N.I. Act seeking for an order and direction to accused to deposit the interim compensation for the reasons stated in the application.
2. Accused has not filed objection to the instant IA, however, he has filed objections to previous application contending that, I.A. is not maintainable and case is barred by limitation.
3. Heard arguments. Perused the material placed on record.
4. This is a private complaint against the accused for the offence punishable U/sec 138 of NI Act. This court has issued summons to accused on 02.09.2021. That on 09.03.2022 the accused put appearance before the court through her counsel and enlarged on bail on executing personal bond with cash surety. Plea and 313 statement of the accused has already been recorded on 09.03.2022. That on 09.03.2022 learned counsel for the complainant has filed previous application u/Sec.143-A of N.I Act and subsequent application i.e., the application in hand was filed on 21.02.2023 seeking an order for interim compensation.
5. The earlier application filed by the complainant was kept in abeyance for 3 months and directed the accused to complete the cross-examination of Pw:1 within said period. As counsel for accused has failed to commence the cross examination of witness, counsel for complainant has requested the court to pass an appropriate order on IA.
6. Perused the decision of Hon’ble Apex Court of Karnataka at Bengaluru reported in Crlp.No.6878/2019 in a case between Usha T.R. and Sri. B.H. Venkatachalaiah and Hon’ble Apex court of Madras reported in Crl.O.P.Nos.15438 and 15440 of 2019 and Crl.M.P.No.7576 and 7578 of 2019 (L.G.R. Enterprises and Another Vs. P. Anbazhagan).
7. Hon’ble High Court of Karnataka and Madras, in the above case it is held that, whenever the trial court exercises its jurisdiction U/Sec.143A (1) of the Act, it shall record reasons as to why it directs the accused person to pay the interim compensation to complainant. The reasons may be varied. For instance, (1) The accused person would have absconded for a longtime and thereby would have protracted the proceedings or (2) The accused person would have intentionally evaded service for a long time and only after repeated attempts he appears before the court, or (3) 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, (4) Where the accused person accepts the debt or liability partly, or (5) Where the accused person does not cross-examine the witnesses and keeps on dragging with the proceedings by filing one petition after another, or (6) The accused person absconds and by virtue of non-bailable warrant he is secured and brought before the Court after a long time, or (7) 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 Sec.143A(1) of the Act.
8. The legislature intentionally not used the word “shall” since it would have prevented the accused persons, even in genuine cases from defending themselves without paying 20% as interim compensation amount to the complainant. 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.
9. In this case, the court has granted sufficient adjournments to the accused to complete the cross examination of Pw:1. Despite availing sufficient opportunities the counsel for accused has not yet commenced the cross examination of Pw:1 from 16.03.2022 to till 21.07.2023.
10. A perusal of order sheet of the case clearly reveals that on 26.04.2022, this court has passed an order directing the accused to conclude the cross examination of Pw:1 within 3 months and kept the IA no:1 filed by the complainant in abeyance. From 26.05.2022 till date, on all hearing dates, although witness was present in the court, the counsel for the accused even not commenced cross examination of Pw:1. It is clear from the conduct of the accused that that he wants to drag on the matter by seeking time/adjournments for one or other reasons. The amount covered under cheque is a huge amount and therefore, it is fit case to direct the accused to pay 5% of the cheque amount as an interim compensation to the complainant. Hence, following
: ORDER ::
The application filed by the complainant under Sec 143 A of N.I Act is hereby allowed.
Consequently, the accused shall deposit or pay 5% of the cheque amount to the complainant on or before 60 days from the date of order.
The complainant is entitled to receive the said amount by executing indemnity bond to the tune of amount deposited to the court.
In the event the acquittal, the complainant shall repay the said amount with prevailing rate of interest as on the date of depositing the amount by the accused to the court within 60 days.
If the case is ended in conviction of accused, the amount of compensation awarded under Sec 357 of CRPC shall be reduced by the amount paid towards interim compensation.
For cross-examination of P.W.1 finally by 04.09.2023."
4. Aggrieved by the said order, petitioner approached the Sessions Court in Revision Petition No.572/2023 which was dismissed by the Sessions Court by holding as under:
" This revision petition U/s.397 of Code of Criminal Procedure hereinafter referred as Cr.P.C., is filed by the petitioner/accused assailing the order dated.31.07.2023 allowing the application U/s.143(A) of Negotiable Instrument Act (hereinafter referred as N.I.Act) filed by the complainant directing the petitioners to deposit 5% of the cheque amount in C.C.No.8053/2021 on the file of VI ASCJ and ACMM, Bengaluru.
2. Rank of the parties is referred to as per their ranks assigned before the trial court.
3. The facts set out in the petition is as under;
The complainant has filed complaint against the petitioner/ accused person in C.C.No.8053/2021 for the offence punishable U/s.138 of N.I.Act for dishonour of three cheques issued by them to the tune of Rs.19,00,058/- On 09.03.2022, complainant has filed application U/s.143(A) of N.I.Act praying to direct the accused to pay 20% of the amount covered under the cheque as interim compensation as he is in urgent need of money. The trial court without considering the objections, and without there being a full fledged trial has allowed the application directing the accused to deposit 5% of the cheque amount within 60 days.
4. Being aggrieved by the said order accused persons have preferred this revision petition on following grounds:
i That the provision of Section 143(A) of N.I.Act states that, application to be filed immediately after recording the plea. In the present case, the application is filed at the stage of cross examination of PW.1.
ii. Plain reading of the complaint does not make out any offenses against the petitioner.
iii.The present application is barred under the relevant provision of law.
iv. The full fledged trial is required to prove existence of legally recovery debt transaction between the complainant and accused.
v. It is settled point of law that, grant of interim compensation U/s.143(A) of N.I.Act is not mandatory, but discretionary depending on the circumstances of each case.
vi. The trial court ought not to have drawn the inference that, the amount is secured in pursuance of the order passed by the said court U/s.143(A) of N.I.Act.
vii.The complainant has not made out grounds to allow the application.
viii.The order of the trial court suffers from legal infirmities and material irregularities.
On all these grounds, petitioner prays for setting aside the order passed by the trial court.
5. Respondent appeared through counsel, inspite of sufficient opportunities he has filed objection to the application. However, the learned counsel for the respondent submitted his oral arguments. Accordingly, prays for dismissal of the petition.
6. Heard arguments and perused the materials on record.
7. The points that arise for my consideration are:
1. Whether petitioner has made-out grounds to allow the petition by setting aside the order on application U/s.143(A) of N.I.Act dated. 31.07.2023 passed in C.C.No.8053/2022 by the learned Judge and VI ASCJ & ACMM, Bengaluru
2. Whether there is legal infirmity in the impugned judgment, which requires interference of this court
3. What Order
8. On consideration of the petition, impugned order and materials on record, my findings on the above points are answered as under:-
Point No.1: In the Negative,
Point No.2: In the Negative,
Point No.3: As per final order below, for the following:-
R E A S O N S
9. POINTS NO.1 & 2:-These points are interrelated, hence they are taken together for common discussion in order to avoid repetition of facts and evidence. The accused has challenged the legality of the order passed by the Learned Magistrate on application filed by the complainant U/s.143(A) of N.I.Act directing him to pay interim compensation to the extent of 5% of the cheque amount to the complainant. The main grievance of the accused is that, there exists no such legally recoverable debt or liability. Due to the ill-health of his counsel, it was not possible for him to defend the application U/s.143(A) of N.I.Act. He is financially not sound to pay the interim compensation amount. per contra, complainant opposed the grounds assigned by the accused for want of supporting documents.
10. In this context, it is proper to re-read the invoked provision of law. Section 143(A) of N.I.Act reads as under;
Power to direct interim compensation.-
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 to 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. This provision entitles the complainant to seek interim compensation not exceeding 20% of the cheque amount.
11. In the light of above provision and upon hearing both sides, this court has given anxious consideration to the copies of trial court court records. The order sheet of the trial court discloses that on 02.09.2021 summons has been issued to the accused, there after on 09.03.2023 the accused appeared through his counsel and obtained bail, Plea and 313 statement was also recorded. On the very same day application U/Sec.143(A) of NI Act was filed the said application was kept in abeyance for a period of 11 months, and thereby the Trial Court has provided sufficient opportunities to the petitioner/accused to complete the cross examination of PW-1. Despite the petitioner/accused has not utilize the opportunity and ultimately on 21.02.2023 similar application U/Sec.143(A) of NI Act filed, seeking interim compensation, even after filing such application the petitioner accused has filed to commence the cross examination of PW1. Therefore, by relaying the judgment rendered by the Hon’ble Apex Court and Hon’ble High Court the Trial Court was passed by interim order.
12. The Trial Court order clearly reads that, the Learned Magistrate has applied judicial mind and opined that, complaint is in time and complainant has made out prima-facie case against accused for the offence punishable U/s.138 of N.I. Act and there are sufficient materials and grounds to proceed against accused person. Further, after appearance, the accused person has pleaded not guilty and claims trial. Section 143-A of N.I. Act provides that, the court trying an offense U/s.138 of N.I. Act may order the drawer of the cheque to pay interim compensation to the complainant not exceeding 20% of the amount of the cheque. The Learned Magistrate by applying judicial discretion and relying on the decision of the Hon'ble High Court of Karnataka in a case of Pradeep Kumar and others V/s. Govinda Beharilal Thakural reported in 2021 SCC Online Kar 12563, wherein the Hon'ble court pleased to observe that, “while considering the present application, court is required to consider whether requirement of Section 143-A of the Act is fulfill or no and merits of the case and defence of the accused cannot be appreciated at this stage, it is fit case to exercise discretion in favour of the complainant”.
13. Thus, the contention of the accused that, full fledged trial is required to prove existence of legally recoverable debt for the purpose of consideration of application U/s.143-A of N.I.Act, holds no water.
14. It is forthcoming from the records that, complainant has filed the private complaint alleging offence punishable U/s.138 of N.I.Act against the accused person after compliance of all the ingredients of Section 138(a) to (c) of N.I.Act. It is not the case of the accused that, there is no compliance of ingredients of Section 138 of N.I.Act or the cheque does not belongs to the bank account maintained by them. Such being the case, the initial statutory presumptions is available to the complainant. No doubt, it is a rebuttable presumptions, however, accused persons are bound by the law to place cogent and acceptable evidence to rebut the presumptions. At this initial stage, in view of the presumptions of law available to the complainant, the court can extend the benefit provided U/s.143 of N.I.Act in favour of the complainant. This court opined that, except his incapability to pay the interim compensation amount, accused has not placed acceptable material to deny the benefit of interim compensation to the complainant. This court do not find any legal infirmity to interfere with the well reasoned orders passed by the Learned Magistrate. Accordingly, points No.1 and 2 under consideration are answered in the Negative.
15. POINT NO.3 :- In view of findings on the above points No.1 and 2, this revision petition liable to be dismissed. Accordingly, following order is made:
O R D E R
Criminal Revision Petition U/s.397 of Code of Criminal Procedure filed by the petitioners is dismissed.
Consequently, impugned order passed on 31.07.2023 in C.C.No.8053/2022 on the file of VI ACSJ & ACMM, Bengaluru is hereby confirmed.
Office is hereby directed to send certified copy of this order to the trial court, forthwith for information."
5. Upon re-consideration, re-evaluation and re-appreciation of the entire material on record, I am of the considered opinion that the impugned order passed by the trial Court allowing the aforesaid application filed by the respondent/complainant cannot be said to suffer from any illegality or infirmity nor can the same be said to be capricious or perverse occasioning failure of justice warranting interference by this Court in the present petition.
Accordingly, I do not find any merit in the petition and the same stands disposed of without interfering with the impugned.
