Mr. B. Pasayat & T.K. Acharya, Advocates v. For Opp. Party
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLMC Nos. 1115 of 2023 Application under Section 482 of Criminal Procedure Code, 1973. --------------- M/s. Shiv Pharmaceuticals …. Petitioner -versus- M/s. Raptakos Brett & Company Ltd. …. Opp. Party Advocate(s) appeared in these cases:- For Petitioner : Mr. B. Pasayat & T.K. Acharya, Advocates Vs. For Opp. Party
Legal Reasoning
: Mr. S.K. Das, M.B. Das, D. Mohanty and B.C. Sahoo, Advocates. __________________________________________________________ CORAM: JUSTICE SASHIKANTA MISHRA JUDGMENT 9th May, 2023 SASHIKANTA MISHRA, J. The petitioner is facing trial in 1CC Case No. 81 of 2020 in the Court of learned S.D.J.M. (Sadar), Cuttack instituted on the basis of a complaint filed by the opposite party-complainant under Section 138 of the NI Act. The Page 1 of 7 said case was instituted as a cheque for Rs.11,81,773/- issued by the petitioner-accused in favour of complainant- opposite party towards cost of some products was dishonored by the bank. By order dated 01.06.2022, learned S.D.J.M. directed the petitioner to pay interim compensation of Rs.2,36,355/-, amounting to 20% of the total cheque amount. The petitioner carried the matter in revision before the court of Sessions being Criminal Revision No. 151 of 2022. Learned Sessions Judge, by order dated 09.09.2022 dismissed the revision. The said order is impugned in the present application filed under Section 482 of Cr.P.C. 2. Heard Mr. B. Pasayat, learned counsel for the petitioner and Mr. S.K.Das, learned counsel appearing for the opposite party. 3. Mr. Pasayat would argue that both the courts below have failed to appreciate the fact that the provision under Section 143-A of the NI Act provides for grant of interim compensation not exceeding 20% of the cheque amount. It is not necessary that the compensation amount shall be Page 2 of 7 equal to 20% of the cheque amount in every case. Since the cheque amount is substantial, directing the petitioner to pay 20% thereof at this stage would cause serious difficulty to him. In support of his contention, Mr. Pasayat has relied upon a decision of the Jammu and Kashmir and Ladakh High Court in the case of Nazir Ahmed Chopan v. Abdul Rehman Chopan, reported in 2022 SCC OnLine J&K 986 and the judgment of Karnataka High Court in the case of Sri Narayanaswamy and another v. Shri Ramesh J.S. (Criminal Petition No. 1550 of 2022, decided on 31.03.2022). 4. Mr. S.K.Das, on the other hand, has argued that the grant of interim compensation as envisaged under Section 143-A of the NI act is meant to protect the interest of the complainant. Since trial in such cases takes such a considerable time, the legislature in its wisdom has incorporated Section 143-A so that at least the complainant would be ultimately compensated at least to the extent of the interest earned on the amount which would offset the fall in the value of money at the time of disposal of the case. Mr. Das further argues that the Page 3 of 7 statutory restriction has to be mandatory followed. He has referred to a decision of the Apex Court in the case of Noor Mohammed vs. Khurram Pasha, reported in 2022 LiveLaw (SC) 652 and Kapur Singh v. State of Haryana and another, reported in AIR 2021 SC 3060. 5. It would be apposite to refer to the relevant statutory provision at the outset, i.e., Section 143-A which reads as follows:- 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 (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 subsection (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. Page 4 of 7 (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.” 6. Bare reading of the provision makes it clear that the Magistrate has been vested with the power to order payment of interim compensation with the rider that the same shall not exceed 20% of the amount of the cheque. It is trite that whenever discretion is conferred on the Court/Magistrate by the statue, it is incumbent upon it to justify exercise of discretion by citing cogent and adequate reason. Discretion obviously means judicial discretion to be exercised on sound reason and logic to be reflected in the order and not whim, fancy or caprice of the Court. Similar view has been taken by the High Courts of Jammu and Kashmir and Karnataka in the cases referred to supra. This Court is therefore, of the view that it was obligatory on the part of the Magistrate to record reasons as to why he deemed it proper to order payment of interim compensation for the maximum amount prescribed under the statue, i.e., 20% and not less. Page 5 of 7 7. In the case laws cited by Mr. Das referred above, it is seen that the question before the Apex Court in both the cases was not on the point discussed hereinbefore, but whether there is any scope to sidetrack the statutory provision and it was thus held that when the statute prescribes a method or modality for exercise of power, by necessary implication, the other methods of performance are not acceptable. Kapur Singh (supra) deals with the consequences of non-compliance of the order under Section 143-A. Thus, the issue involved in the present case was not an issue in the aforementioned cases. To such extent therefore, the cited cases can be distinguished. 8. Reading of the impugned judgment passed by learned Sessions Judge reveals that while learned S.D.J.M. had not ascribed any reason for ordering payment of interim compensation for the maximum amount, the learned Sessions Judge has made an attempt to supply reason on his own to the effect that the petitioner-accused shall not be prejudiced in any manner by complying with the impugned order. In the process, the legality of the order passed by learned S.D.J.M. on the ground of not citing Page 6 of 7 reason was not considered at all. To the above extent therefore, the impugned order cannot be sustained in the eye of law. 9. For the foregoing reasons therefore, the CRLMC is allowed. The impugned order passed by learned Sessions Judge is hereby set aside. The matter is remitted to learned SDJM (Sadar), Cuttack to pass order on the petition filed under Section 143-A of NI Act afresh after hearing both parties and by recording cogent reasons. ..……..………………….. Sashikanta Mishra, Judge BHIGAL CHANDRA TUDU Digitally signed by BHIGAL CHANDRA TUDU Date: 2023.05.10 16:33:06 +05'30' High Court, Cuttack, The 9th May, 2023/ B.C. Tudu, Sr.Steno Page 7 of 7