Prashant Kumar Rastogi v. State of U.P. & another) as well to set aside the impugned order date

Applicant :- Prashant Kumar Rastogi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Balbeer Singh Counsel for Opposite Party :- Gaurav Srivastav,G.A. Hon'ble Vikas Budhwar,J.

1. Heard Shri Balbeer Singh, learned counsel for the applicant, Shri S.K. Singh, learned AGA for the State and Shri Gaurav Srivastav, learned counsel for the opposite party no.2.

2. This application under Section 528 BNSS has been filed by the applicant to set aside the impugned order dated 07.07.2025 passed by learned Sessions Judge, Agra in Criminal Revision No.288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another) as well to set aside the impugned order dated 06.01.2025 passed by learned Additional Chief Judicial Magistrate, Court No.9, Agra in Complaint Case No.20698 of 2023 (Gaurav Jurail Vs. Prashant Kumar Rastogi) under Section 138 N.I. Act, Police Station Khandauli, District Agra.

3. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavit and the application be decided on the basis of documents available on record. With the consent of the parties the application is decided at the fresh stage

4. The case of the applicant is that complaint lodged by the opposite party no.2 on 21.06.2023 against the applicant under Section 138 N.I. Act with an allegation that with respect to discharge of the liability the applicant herein had drawn a cheque bearing no. 758700 of Rs. 29,50,000/- dated 28.04.2023 which on presentation in the bank came to be dishonored on 15.05.2023 followed by statutory remand notice dated 22.05.2023 and the complaint under Section 138 N.I. Act on 21.06.2023 and applicant came to be summoned on 11.08.2023. An application came to be preferred by the opposite party no.2 for grant of interim compensation under Section 143A of N.I. which came to be objected by the applicant and the same came to be allowed on 06.01.2025 by the Court of Additional Chief Judicial Magistrate, Court No.9, Agra in Complaint Case No.20698 of 2023 (Gaurav Jurail Vs. Prashant Kumar Rastogi), according the interim compensation to the tune of 20% of the total amount of Rs. 29,50,000/- against which the applicant preferred Criminal Revision No. 288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another) which also came to be rejected by the Court of Sessions Judge, Agra on 07.07.2025 in Criminal Revision No.288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another)

5. Questioning the both orders in present application has been preferred.

6. Learned counsel for the applicant submits that both the Courts below have committed patent error of law apparent on record in according the interim compensation to the opposite party no.2 particularly in view of the fact that the none of the conditions which were mandated by the Apex Court in Rakesh Ranjan Shrivastava Vs. The State of Jharkhand & Anr. 2024 0 Supreme (SC) 229 have been adhered to.

7. Submission of the applicant is that there are certain broad parameters, evaluation on merits on prima facie basis of the complainant and the defence pleaded by the accused, financial distress and in case, a decision is taken to accord interim compensation the quantum of compensation and while taking into account several facts including the nature of transaction and the relationship if any, between the accused and the complainant. He submits that there has no consideration to the same. According to him, both the orders be set aside and the matter be remitted back to Court below to pass fresh orders.

8. Learned A.G.A. as well as learned counsel appearing for the opposite party no.2 submit that once the cheque stood dishonoured then the presumption under Section 139 N.I. Act would be there. However, they could not dispute the fact that the order according interim compensation under Section 143A of the N.I. Act is not as per the mandate of the Hon'ble Apex Court in Rakesh Ranjan Shrivastava (Supra). They submit that orders be set aside and the matter be remitted back.

9. I have heard the learned counsel for the parties and perused the record carefully.

10. Apparently a perusal of the order passed by the trial Court and the revisional Court would reveal that there has been no consideration of the prima facie case on merits of the accused and the complainant, financial distress of the accused, quantum of compensation to be granted if facts necessitates the bearing in mind the nature of transaction and the relationship of the parties.

11. The Hon'ble Apex Court in Rakesh Ranjan Shrivastava (Supra), wherein in paragraph no. 19, it was observed as under: "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."

12. Since the aforesaid exercise is completely lacking, thus, the order dated 07.07.2025 passed by Sessions Judge, Agra in Criminal Revision No.288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another) as well as impugned order dated 06.01.2025 passed by Additional Chief Judicial Magistrate, Court No.9, Agra in Complaint Case No.20698 of 2023 (Gaurav Jurail Vs. Prashant Kumar Rastogi) under Section 138 N.I. Act, Police Station Khandauli, District Agra cannot be sustained.

13. The present application is being decided in the following terms: (a). Order dated 07.07.2025 passed by learned Sessions Judge, Agra in Criminal Revision No.288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another) as well as the impugned order dated 06.01.2025 passed by learned Additional Chief Judicial Magistrate, Court No.9, Agra in Complaint Case No.20698 of 2023 (Gaurav Jurail Vs. Prashant Kumar Rastogi) under Section 138 N.I. Act, Police Station Khandauli, District Agra is set aside. (b). The matter stands remitted back to the Trial Court pass fresh order strictly in accordance with law.

14. It goes without saying that the proceedings be also decided as per the mandate of the Act.

15. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 29.08.2025 and the court below shall proceed to decide the said proceeding with most expedition.

16. Needless to point out that the Court has not adjudicated upon the merits of the case.

17. Accordingly, the application stands disposed of. Order Date :- 11.8.2025 Imtiyaz

Applicant :- Prashant Kumar Rastogi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Balbeer Singh Counsel for Opposite Party :- Gaurav Srivastav,G.A. Hon'ble Vikas Budhwar,J.

1. Heard Shri Balbeer Singh, learned counsel for the applicant, Shri S.K. Singh, learned AGA for the State and Shri Gaurav Srivastav, learned counsel for the opposite party no.2.

2. This application under Section 528 BNSS has been filed by the applicant to set aside the impugned order dated 07.07.2025 passed by learned Sessions Judge, Agra in Criminal Revision No.288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another) as well to set aside the impugned order dated 06.01.2025 passed by learned Additional Chief Judicial Magistrate, Court No.9, Agra in Complaint Case No.20698 of 2023 (Gaurav Jurail Vs. Prashant Kumar Rastogi) under Section 138 N.I. Act, Police Station Khandauli, District Agra.

3. A joint statement has been made by the learned counsel for the parties that they do not propose to file any affidavit and the application be decided on the basis of documents available on record. With the consent of the parties the application is decided at the fresh stage

4. The case of the applicant is that complaint lodged by the opposite party no.2 on 21.06.2023 against the applicant under Section 138 N.I. Act with an allegation that with respect to discharge of the liability the applicant herein had drawn a cheque bearing no. 758700 of Rs. 29,50,000/- dated 28.04.2023 which on presentation in the bank came to be dishonored on 15.05.2023 followed by statutory remand notice dated 22.05.2023 and the complaint under Section 138 N.I. Act on 21.06.2023 and applicant came to be summoned on 11.08.2023. An application came to be preferred by the opposite party no.2 for grant of interim compensation under Section 143A of N.I. which came to be objected by the applicant and the same came to be allowed on 06.01.2025 by the Court of Additional Chief Judicial Magistrate, Court No.9, Agra in Complaint Case No.20698 of 2023 (Gaurav Jurail Vs. Prashant Kumar Rastogi), according the interim compensation to the tune of 20% of the total amount of Rs. 29,50,000/- against which the applicant preferred Criminal Revision No. 288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another) which also came to be rejected by the Court of Sessions Judge, Agra on 07.07.2025 in Criminal Revision No.288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another)

5. Questioning the both orders in present application has been preferred.

6. Learned counsel for the applicant submits that both the Courts below have committed patent error of law apparent on record in according the interim compensation to the opposite party no.2 particularly in view of the fact that the none of the conditions which were mandated by the Apex Court in Rakesh Ranjan Shrivastava Vs. The State of Jharkhand & Anr. 2024 0 Supreme (SC) 229 have been adhered to.

7. Submission of the applicant is that there are certain broad parameters, evaluation on merits on prima facie basis of the complainant and the defence pleaded by the accused, financial distress and in case, a decision is taken to accord interim compensation the quantum of compensation and while taking into account several facts including the nature of transaction and the relationship if any, between the accused and the complainant. He submits that there has no consideration to the same. According to him, both the orders be set aside and the matter be remitted back to Court below to pass fresh orders.

8. Learned A.G.A. as well as learned counsel appearing for the opposite party no.2 submit that once the cheque stood dishonoured then the presumption under Section 139 N.I. Act would be there. However, they could not dispute the fact that the order according interim compensation under Section 143A of the N.I. Act is not as per the mandate of the Hon'ble Apex Court in Rakesh Ranjan Shrivastava (Supra). They submit that orders be set aside and the matter be remitted back.

9. I have heard the learned counsel for the parties and perused the record carefully.

10. Apparently a perusal of the order passed by the trial Court and the revisional Court would reveal that there has been no consideration of the prima facie case on merits of the accused and the complainant, financial distress of the accused, quantum of compensation to be granted if facts necessitates the bearing in mind the nature of transaction and the relationship of the parties.

11. The Hon'ble Apex Court in Rakesh Ranjan Shrivastava (Supra), wherein in paragraph no. 19, it was observed as under: "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."

12. Since the aforesaid exercise is completely lacking, thus, the order dated 07.07.2025 passed by Sessions Judge, Agra in Criminal Revision No.288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another) as well as impugned order dated 06.01.2025 passed by Additional Chief Judicial Magistrate, Court No.9, Agra in Complaint Case No.20698 of 2023 (Gaurav Jurail Vs. Prashant Kumar Rastogi) under Section 138 N.I. Act, Police Station Khandauli, District Agra cannot be sustained.

13. The present application is being decided in the following terms: (a). Order dated 07.07.2025 passed by learned Sessions Judge, Agra in Criminal Revision No.288 of 2025 (Prashant Kumar Rastogi Vs. State of U.P. & another) as well as the impugned order dated 06.01.2025 passed by learned Additional Chief Judicial Magistrate, Court No.9, Agra in Complaint Case No.20698 of 2023 (Gaurav Jurail Vs. Prashant Kumar Rastogi) under Section 138 N.I. Act, Police Station Khandauli, District Agra is set aside. (b). The matter stands remitted back to the Trial Court pass fresh order strictly in accordance with law.

14. It goes without saying that the proceedings be also decided as per the mandate of the Act.

15. For facilitating early disposal, the party shall furnish the certified copy of the order before the court below by 29.08.2025 and the court below shall proceed to decide the said proceeding with most expedition.

16. Needless to point out that the Court has not adjudicated upon the merits of the case.

17. Accordingly, the application stands disposed of. Order Date :- 11.8.2025 Imtiyaz