High Court
Case Details
Neutral Citation No. - 2025:AHC:109843 Court No. - 75 Case :- APPLICATION U/S 528 BNSS No. - 16005 of 2025 Applicant :- Smt Sarvesh Devi Opposite Party :- State of U.P. and Another Counsel for Applicant :- Sunil Kumar Dubey Counsel for Opposite Party :- G.A. Hon'ble Vikas Budhwar,J.
Legal Reasoning
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." 10. Since the parameter so enumerated in Rakesh Ranjan Srivastava (supra) has not been considered and the exercise is lacking, thus, this Court has no option but to set aside the order dated 17.08.2023. 11. Accordingly, the order dated 17.08.2023 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate-04, Amroha in Complaint Case No. 263 of 2023 is set aside, matter stands remitted back to the court below to pass fresh order in light of the judgment in Rakesh Ranjan Srivastava (supra) for facilitation in speedy disposal. The certified copy of the order be furnished before the court below by 22.07.2025, the court below shall take endeavour to pass orders strictly in accordance with law without granting unnecessary adjournment particularly in view of the fact that learned counsel for the applicant, as per the instructions of his client, has disclosed shall not take any unnecessary adjournment.
Arguments
1. Heard Sri Sunil Kumar Dubey, learned counsel for the applicant and Sri J.P. Gupta, learned AGA for the State. 2. In view of the order which is being proposed to be passed, notice is not being issued to the opposite party no. 2. 3. This application u/s 528 of BNSS has been preferred to set aside the order Dated 17.08.2023 as well as Order dated 17.03.2025 passed by Additional Civil Judge (Junior Division)/Judicial Magistrate-04, Amroha in Complaint Case No. 263 of 2023 (Vipin Vs. Smt. Sarvesh Devi), Under Section 138 N.I. Act, Police Station- Naugawa Sadat, District-Amroha. 4. The case of the applicant is that a complaint was lodged by the opposite party no. 2 on 24.01.2023 against the applicant under Section 138 of the NI Act with an allegation that with respect to discharge of a liability, the applicant had drawn a cheque of an amount of Rs. 20,00,000/- being cheque No. 134142 which on presentation in the bank on 03.12.2022 came to be dishonored on 07.12.2022 followed by a complaint thereafter, applicant came to be summoned under Section 138 of the NI Act. An application came to be preferred by the opposite party no. 2 for grant of interim compensation under Section 138A of the NI Act which was objected by the applicant which came to be allowed on 17.08.2023 in Complaint Case No. 263 of 2023 (Vipin Vs. Smt. Sarvesh Devi) while granting interim compensation to the tune of 20%. 5. Questioning the order passed under Section 143A of the NI Act granting interim compensation to the tune of Rs. 20%, the applicant has filed the present application. 6. Learned counsel for the applicant has submitted that the order dated 17.08.2023 according 20% interim compensation cannot be sustained for a simple reason that the same has not been passed in accordance with the judgment of Hon'ble Apex Court in the case of Rakesh Ranjan Srivastava v. State of Jharkand and another: (2024) 3 S.C.R. 438. Submission is that there are certain criteria which ought to have been considered while according interim compensation under Section 143A of the NI Act that is 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 reply to the application, the financial distress of the accused and a direction to pay interim compensation can only be issued if the complainant makes a prima facie, and if the defence of the accused is found to be prima facie plausible the Court exercise discretion in refusing to grant compensation and if the Court concludes that the case is made out from interim compensation, it would have to apply its mind to the quantum of interim compensation to be granted while considering the nature of the transaction, the relationship, if any, between the accused and the complainant itself. Submission is that none of the said criteria had been adhered to, thus, the order dated 17.08.2023 according interim compensation be set aside. 7. Learned AGA, on the other hand, submits that the order passed is not in conformity with the judgment in the case of Rakesh Ranjan Srivastava (supra) as the parameter so enunciated and noted above and not be discussed, he submits that the order be set aside and matter be remitted back to the court below to pass a fresh order. 8. I have heard the submissions so made across the bar and perused the record. 9. A perusal of the said order would go to show that the parameters so enunciated in the case of Rakesh Ranjan Srivastava (supra) is not being considered that there is no consideration to the financial distress and the quantum of compensation which is to be paid. In Rakesh Ranjan Srivastava (supra), the following 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:
Decision
12. With the above observation, the application stands disposed of. Order Date :- 10.7.2025/Rajesh Digitally signed by :- RAJESH KUMAR High Court of Judicature at Allahabad