Allahabad High Court
Anil Mittal vs State Of U.P. And Another on 1 August, 2019
Bench: Rajiv Joshi
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 72
Case :- APPLICATION U/S 482 No. - 29627 of 2019
Applicant :- Anil Mittal
Opposite Party :- State Of U.P. And Another
Counsel for Applicant :- Vinod Kumar Agarwal,Anshul Kumar Singhal
Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Joshi,J.
Vakalatnama filed by Shri Mohit Singh, Advocate on behalf of O.P. No.2 is taken on record.
Heard Shri Anshul Kumar Singhal, learned counsel for the applicant, learned A.G.A. for the State and Shri Mohit Singh, learned counsel for the O.P. No.2.
The application under Section 482, Cr.P.C. has been filed for quashing the impugned order dated 6.6.2019 passed by the Presiding Officer, Additional Court No.2, Gautam Budh Nagar in complaint case No.946 of 2018 (Old Case No.1350 of 2017), under Section 138, N.I. Act, P.S. Sector-39, Noida, District Gautam Budh Nagar, whereby the applicant was directed to pay 20% of the cheque amount as interim compensation on the basis of provisions of Section 143A of the Negotiable Instrument Act (in short the N.I. Act).
Learned counsel for the applicant submits that in the present case, the provisions of Section 143A of the N.I. Act are not at all attracted as the same was inserted by Act No.20 of 2018 w.e.f. 1.9.2018 and the said provision would be applicable only to the cases where complaint was filed after 1.9.2018 and the same cannot be applied retrospectively.
On the other hand learned counsel for O.P. No.2 has justified the impugned order.
I have considered the rival submissions of the parties and perused the record.
It reflects from the record that the complaint in the instant case was lodged on 4.9.2017 by the complainant-O.P. No.2 against the applicant for dishonouring of cheque amounting to Rs.1,05,00,000/-. Section 143A of the N.I. Act was inserted by Act No.20 of 2018 with effect from 1.9.2018. The inserted section 143A of the N.I. Act is quoted as under:
"143A. 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 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 years, 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."
A reading of Section 143A shows (i) interim compensation must not exceed 20% of the amount of the cheque; (ii) it must be paid within the time stipulated under Sub-Section (3); (iii) if the accused is acquitted, the complainant shall be directed to pay to the accused the amount of interim compensation with interest at the bank rate; (iv) the interim compensation payable under said Section can be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 ('the Code', for short); and (v) if the accused were to be convicted, the amount of fine to be imposed under Section 138 of the Act or the amount of compensation to be awarded under Section 357 of the Code would stand reduced by the amount paid or recovered as interim compensation.
The Magistrate vide impugned order dated 6.6.2019 has directed the applicant to make the payment to the extent of 20% of the cheque amount as interim compensation.
In a recent judgment in Criminal Appeal No.1160 of 2019, G.J. Raja Vs. Tejraj Surana, the Apex Court has held the applicability of Section 143A of N.I. Act to be prospective in nature and confined to the cases where offences are committed after introduction of Section 143A of N.I. Act. The relevant paragraph Nos.23 and 24 of the said judgment are quoted as under:
"23. We must, however, advert to a decision of this Court in Surinder Singh Deswal and Ors. vs. Virender Gandhi where Section 148 of the Act which was also introduced by the same Amendment Act 20 of 2018 from 01.09.2018 was held by this Court to be retrospective in operation. As against Section 143A of the Act which applies at the trial stage that is even before the pronouncement of guilt or order of conviction, Section 148 of the Act applies at the appellate stage where the accused is already found guilty of the offence under Section 138 of the Act. It may be stated that there is no provision in Section 148 of the Act which is similar to Sub-Section (5) of Section 143A of the Act. However, as a matter of fact, no such provision akin to sub-section (5) of Section 143A was required as Sections 421 and 357 of the Code, which apply post-conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act. Therefore, the decision of this Court in Surinder Singh Deswal stands on a different footing.
24. In the ultimate analysis, we hold Section 143A to be prospective in operation and that the provisions of said Section 143A can be applied or invoked only in cases where the offence under Section 138 of the Act was committed after the introduction of said Section 143A in the statute book. Consequently, the orders passed by the Trial Court as well as the High Court are required to be set aside. The money deposited by the Appellant, pursuant to the interim direction passed by this Court, shall be returned to the Appellant along with interest accrued thereon within two weeks from the date of this order."
In view of the decision in G.J. Raja case (supra), the impugned order passed by the Magistrate is not legally sustainable and the applicant cannot be directed to pay the interim compensation to the extent of 20% of the cheque amount as the provisions of Section 143A of the N.I. Act are not at all attracted since the complaint was filed on 4.9.2017.
The application stands allowed and impugned order dated 6.6.2019 passed by the Presiding Officer, Additional Court No.2, Gautam Budh Nagar in the aforesaid case is, hereby, quashed.
It is, however, observed that since the complaint is pending since 2017, learned Magistrate shall decide the complaint in accordance with law as expeditiously as possible without granting any unnecessary or long adjournments to the parties concerned.
No order as to costs.
Order Date :- 1.8.2019
T. Sinha
