Dr.Asish Kumar Dixit v. Janardhan Tripathi) under Section
Case Details
Neutral Citation No. - 2024:AHC:142587 (Sl.No.28) Court No. - 79 Case :- APPLICATION U/S 482 No. - 21991 of 2024 Applicant :- Janardhan Tripathi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Dharam Veer Singh,Shobhit Pratap Singh Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
6. In view thereof, once it is admitted by the applicant that he has issued the cheque to the opposite party No.2, it shall be presumed that the said cheque was issued by the applicant in discharge of his legal liability towards the opposite party No.2. Therefore, prima facie a case is made out against the applicant herein and whether there was no liability as pleaded by the applicant in his reply to the application under Section 143-A of the N.I.Act is subject matter of trial. Once prima facie a case is made out, it is at the discretion of the trial court to pass appropriate directions for deposit of the compensation in view of Section 143-A of N.I. Act. 7. To apply the discretion under Section 143-A of the N.I. Act, the Apex Court has laid down the following guidelines: "19. Subject to what is held earlier, the main conclusions can be summarised as follows: a. The exercise of power under sub-section (1) of Section 143A is discretionary. The provision is directory and not mandatory. The word “may” used in the provision cannot be construed as “shall.” b. While deciding the prayer made under Section 143A, the Court must record brief reasons indicating consideration of all relevant factors. c. The broad parameters for exercising the discretion under Section 143A are as follows: i. The Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application. The financial distress of the accused can also be a consideration. ii. A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case. iii. If the defence of the accused is found to be prima facie plausible, the Court may exercise discretion in refusing to grant interim compensation. iv. If the Court concludes that a case is made out to grant interim compensation, it will also have to apply its mind to the quantum of interim compensation to be granted. While doing so, the Court will have to consider several factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant, etc. v. There could be several other relevant factors in the peculiar facts of a given case, which cannot be exhaustively stated. The parameters stated above are not exhaustive." 7. From the aforesaid guidelines, it is undisputed that power under Section 143-A of N.I. Act is a discretionary power available to the learned Magistrate when the trial court has to see whether prima facie a case is made out and once the case is made out, the trial court may apply its discretion directing the accused to deposit the interim compensation to the extent of 20% of the cheque amount. However, while exercising such power, the court is also required to consider the several factors, such as, nature of transaction, relationship between the accused and the complainant and the financial constraints if any of the accused. 8. This Court has gone through the reply of the applicant herein and in the aforesaid reply, except disputing the liability, he has not pleaded anything with regard to his financial constraints and from the facts as narrated above, prima facie a case has been established against the applicant. 9. In view thereof, this Court does not find any illegality in the orders dated 18.12.2023 and 29.4.2024. 10. Accordingly, the instant application lacks merit and is hereby dismissed. Order Date :- 3.9.2024 LN Tripathi (Anish Kumar Gupta,J.)
Arguments
1. Heard Sri Faiz Ahmad, Advocate, holding brief of Sri Dharam Veer Singh, learned counsel for the applicant and Sri Prem Prakash Tiwari, learned AGA for the State. 2. This application under Section 482 Cr.P.C. has been filed by the applicant seeking quashing of the order dated 18.12.2023 in Complaint Case No.5649 of 2019 (Dr.Asish Kumar Dixit vs. Janardhan Tripathi) under Section 138 of N.I. Act, 1881, Police Station-Sadar Bazar, District-Agra as well as the order dated 29.4.2024 rejecting the revision filed against the above order. 3. Learned counsel for the applicant submits that the applicant herein is an accused in the proceedings initiated by the opposite party No.2 under Section 138 of N.I. Act. He further submits that on an application moved under Section 143-A of N.I. Act, the trial court vide order dated 18.12.2023 has directed the applicant herein to deposit 20% of the cheque amount as interim compensation to the opposite party No.2. The aforesaid order dated 18.12.2023 was challenged by the applicant by filing Criminal Revision No.74 of 2024, which has also been rejected vide order dated 29.4.2024 against which the instant application has been filed. Learned counsel for the applicant relying upon the judgment of Apex Court in Rakesh Ranjan Shrivastava vs. The State of Jharkhand and another passed in Criminal Appeal No.741 of 2024 dated 15th March, 2024, submits that the Apex Court has already laid down the guidelines for exercising the discretion under Section 143-A of the N.I. Act, according to which, the trial court is required to consider the defence of the accused as well as the financial status and contingencies of the accused while applying its discretion. Learned counsel for the applicant further submits that though he has not disputed the issuance of cheque, however, he has disputed the liability as after issuance of the cheque, the entire due amount was already paid to the original complainant, who has now died and his wife has been impleaded as complainant. Since the applicant has disputed the liability, the trial court ought not to have applied its discretion and ought not to have allowed the application under Section 143 A of the N.I. Act moved by the opposite party No.2. He further submits that trial court has not considered the financial constraints of opposite party No.2 as well, which was directed to be considered by the Apex Court in Rakesh Ranjan Shrivastava (supra). 4. Per contra, learned AGA submits that from the admission on the part of the applicant herein that the cheque was issued by him, therefore, the presumption under Section 139 of the N.I.Act shall come into play against the applicant herein and it shall be presumed that the said cheque was issued by the applicant in discharge of his legal liability. Once in view of the presumption under Section 139 of the N.I. Act, prima facie, a case has been made out against the applicant herein. It is further submitted that with regard to the financial constraint, which has not been considered by the trial court, there is no pleading in the reply of the applicant to the application under Section 143-A of the N.I. Act, therefore, the trial court cannot go beyond the pleadings while deciding the application, therefore, there is no illegality in the orders. 5. Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case. In the complaint under Section 138 of N.I. Act, it has been stated by the complainant that in pursuance of an agreement to sell, the impugned cheque was issued by the applicant to the opposite party No.2 and the same was presented for encashment and was dishonoured, thereupon a legal demand notice was issued by the opposite party No.2, which was not complied with by the applicant herein, therefore, the instant complaint case under Section 138 of N.I. Act was filed on 27.3.2019. Subsequent thereto, after the presence of the applicant herein, an application under Section 143- A of NI Act was filed by the opposite party No.2 on 5.7.2023. Reply to the aforesaid application was also filed by the applicant herein on 18.9.2022, wherein the applicant has categorically admitted the issuance of cheque, however, he has disputed the liability. However, there is no averment with regard to the financial constraint in the aforesaid reply to the application under Section 143-A of N.I. Act.