Shahjad v. Mashkoor Warsi) under Section
Case Details
Neutral Citation No. - 2024:AHC:152917 HIGH COURT OF JUDICATURE AT ALLAHABAD ***** (Sl.No. 33) Court No. - 79 Case :- APPLICATION U/S 482 No. - 26909 of 2024 Applicant :- Mashkoor Warsi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Bharat Singh Counsel for Opposite Party :- G.A. Hon'ble Anish Kumar Gupta,J.
Legal Reasoning
1. Heard Sri Bharat Singh, learned counsel for the applicant and Sri Kamlesh Kumar Tripathi, learned A.G.A. for the State. 2. The instant application under Section 482 Cr.P.C. has been filed seeking quashing of the order dated 22.5.2024 passed by learned Civil Judge (Junior Division)/Judicial Magistrate, Baha Nyayalaya, Sambhal in Complaint Case No. 2714 of 2023 (Shahjad vs. Mashkoor Warsi) under Section 138 of the Negotiable Instruments Act (in short 'the N.I. Act'), P.S.-Sambhal, District- Sambhal directing the applicant to pay 15% each of the amount of the two cheques bearing cheque no. 000399 of Rs. 25,00,000/- and cheque no. 000400 of Rs. 25,00,000/- as interim compensation to the opposite party no.2 within a period of one month from the date of the order. 3. Learned counsel for the applicant without disputing the issuance of cheques submits that after issuance of the cheques, part payment towards both the cheque amount has already been made by the applicant and without adjusting the same the cheques have been presented and on dishonor of the same, the instant complaint case has been filed. Thereupon summons were issued against the applicant and he appeared before the trial court and disputed his liability before the trial court. Learned counsel for the applicant further submits that subsequent thereto, an application under Section 143-A of the N.I. Act has been filed by the opposite party no.2 seeking interim compensation to the extent of 20% of the cheque amount. The said application has been partly allowed by the trial court, awarding interim compensation to the extent of 15% of each of the cheque amount in favour of the opposite party no.2. 4. Learned counsel for the applicant submits that in response to the said application, the applicant has raised an issue with regard to part payments made by the applicant and without considering the same, the impugned order has been passed by the trial court. Therefore, learned counsel for the applicant submits that the applicant has already paid a substantial amount and he cannot be asked to pay 15% of the cheque amount as ordered by the trial court. Hence, he seeks quashing of the impugned order dated 22.5.2024 passed by the trial court. 5. Per contra, learned A.G.A. submits that the issuance of cheque has not been denied by the applicant, therefore, a presumption under Section 139 of the N.I. Act, shall come into play against the applicant herein and it shall be presumed that there was a liability on the part of the applicant and the said cheques were issued by him in discharge of his liability. Mere contention of the applicant that he has made the part payment could not be considered at such preliminary stage and that is the subject matter of trial where by leading the cogent evidence the applicant is required to prove that there was no liability on his part to discharge his burden to rebut the presumption under Section 139 of the N.I. Act. Till said burden is discharged, the liability of the cheque amount continues to be against the applicant. Therefore, the trial court did not err in allowing the application under Section 143-A of the N.I. Act, and no interference is called for in the instant case. 9. Having heard the rival submissions made by learned counsel for the parties, this Court has carefully gone through the record of the case. 10. From the record of the case, it is apparent that a complaint case under Section 138 of the N.I. Act for dishonor of two cheque of Rs. 25,00,000/- each was filed by the opposite party no.2. Admittedly, the said cheques were issued by the applicant and when the same were dishonored, legal demand notice was issued to the applicant, which was not complied with, then the instant complaint case was filed by the opposite party no.2. The applicant was summoned and after his statement under Section 251 Cr.P.C. was recorded, the opposite party no.2 has moved an application under Section 143-A of the N.I. Act, for seeking an interim compensation to the extent of 20% of the cheque amount. The said application was objected by the applicant by contending that he has already made part payment of the cheque amount, therefore, interim compensation is not required to be directed by the trial court. 11. Since the issuance of cheque has not been denied by the applicant, a presumption under Section 139 of the N.I. Act is drawn against the applicant and it is presumed that the said cheque was issued by the applicant in discharge of his liability, till the same is rebutted by the applicant by leading cogent evidence before the trial court. Section 143-A of the N.I. Act entitles and mandates the trial court to grant interim compensation during the pendency of the complaint case. Section 143-A of the N.I. Act reads as under:- "143-A. Power to direct interim compensation.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 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) 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 (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." 12. From the plain reading of the said Section, it is apparent that it takes care of all the contingencies arising out of such payment of interim compensation made by the accused. If ultimately, the accused succeeds in his contention that there was no liability, it is open for the trial court to direct refund of the such amount so deposited by the accused after the conclusion of the trial. Therefore, this Court does not find any error in the impugned order dated 22.5.2024 passed by the trial court directing the applicant herein to pay interim compensation to the extent of 15% each of the cheque amount, which is passed after due consideration of the objection raised by the applicant herein. 13. In view thereof, the instant application lacks merit and is accordingly, dismissed. Order Date :- 18.9.2024 Kirti (Anish Kumar Gupta, J.)