Allahabad High Court

Amit Kumar vs State Of U.P. And Another on 9 July, 2025





HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:109839
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 9911 of 2025
 

 
Applicant :- Amit Kumar
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Balbeer Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Vikas Budhwar,J.

1. Heard Sri Balbeer Singh, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law Officer for the State.

2. This Court on 23.05.2025 proceeded to pass the following order:

"1. Contention of the learned counsel for the applicant is that the order dated 21.02.2024 passed by the trial court as well as the order dated 30.09.2024 of the revisional court does not consider the mandate of Hon'ble Apex Court in Rakesh Ranjan Srivastava v. State of Jharkand and another: (2024) 3 S.C.R. 438, wherein criteria has been enumerated according to which, the application is to be considered under Section 143A. One of the said condition is the quantum of compensation and also financial distress of the accused has not been considered.

2. Matter requires consideration.

3. Issue notice to the opposite party no. 2.

4. Counter affidavit be filed by 03.07.2025, rejoinder may be filed by 07.07.2025.

5. Put up this case on 09.07.2025, as fresh.

6. Till 09.07.2025, no coercive action shall be taken against the applicant in the impugned order dated 21.02.2024 passed by Learned Presiding officer, Additional Court no. 2, Agra in complaint case no. 8105 of 2021, (Om Prakash Sharma vs Amit Kumar) under section 138 N. I. Act, Police station Hariparvat, Agra. "

3. There is an office report dated 08.07.2025 that service upon the opposite party no.2 has been served.

4. Till dictation of the order, nobody has put in appearance on behalf of opposite party no.2.

5. Learned counsel for the applicant as well as the learned State Law Officer has made a statement at bar that they do not propose to file any affidavit and the application be decided on the basis of the documents available on record.

6. With the consent of the parties, the application is being decided at the fresh stage.

7. This is an application filed U/s 528 BNSS for quashing the impugned order dated 30.9.2024 passed by the learned Additional District & Sessions Judge, court no.9 in Criminal Revision No. 318 of 2024 (Amit Kumar vs. State of U.P. & another) as well as the impugned order dated 21.02.2024 passed by learned Presiding Officer, Additional Court no.2 Agra in complaint case no. 8105 of 2021 (Om Prkash Sharma vs. Amit Kumar) U/s 138 of N.I. Act.

8. Learned counsel for the applicant has submitted that a complaint was lodged by the opposite party no.2 on 27.08.2021 with an allegation that with respect to discharge of a liability, the applicant herein had drawn a cheque bearing no.000637 of an amount of Rs.5 lac dated 10.06.2021 which on presentation in the bank stood dishonoured. Pursuant whereto a statutory demand notice was issued on 30.07.2021 followed by a complaint U/s 138 of N.I. Act and the applicant came to be summoned on 28.09.2021.

9. During the pendency of the said application, an application came to be preferred by the opposite party no.2 complainant on 14.07.2023 U/s 143 (A) of N.I. Act for grant of interim compensation. The said application came to be contested by the applicant herein on 01.01.2024 and, thereafter, on 21.02.2024 an order came to be passed according interim compensation to the tune of 20 per cent being Rs. 1 lac out of the total amount of Rs. 5 lac by the court of Presiding Officer, Additional court-2, Agra. Questioning the said order, a revision came to be preferred on 24.04.2024 which ultimately came to be dismissed by virtue of order dated 30.09.2014 in criminal revision no. 318 of 2024. Questioning both the order, the present application has been preferred.

10. Learned counsel for the applicant has submitted that the order impugned in the present application cannot be sustained for the simple reason that the court below just as a matter of rule while applying the provision of Section 143 (A) of N.I. Act as has on mere asking accorded interim compensation to the tune of 20 per cent without following the mandate of the Hon'ble Apex Court in the case of Rakesh Ranjan Srivastava vs. State of Jharkhand and Another (2024) 3 SCR 438. The submission is that there are certain parameters which had been carved out by the Hon'ble Apex Court doing the evaluation of the prima-facie case of the complainant and the accused, the financial distress of the accused in case the circumstances tilt in favour of the complainant then the quantum of compensation looking into the aspect relating to the nature of the transaction, relationship of the parties etc. He submits that the said exercise is completely lacking. According to him both the orders be set aside and the matter be remitted back to the court below to pass a fresh order.

11. Learned State Law Officer on the other hand submits that though the cheque stood drawn and the same was dishonoured thus, presumption U/s 139 of N.I. Act would always be there. However, he could not dispute the legal position as enumerated in the case of Rakesh Ranjan Srivastava (Supra). He further submits both the orders be set aside and the matter be remitted back to the court below to pass a fresh order.

12. I have heard the submissions so made across the bar and perused the record carefully.

13. Apparently with respect to dishonouring of a cheque of Rs. 5 lac followed by a complaint statutory demand notice and a complaint, the applicant to be summoned U/s 138 of N.I. Act and, thereafter, an application came to be preferred U/s 143(A) for according interim compensation which on contest came to be allowed. Though, it is not in dispute that section 143(A) of N.I. Act obligates, the courts to accord to interim compensation to the tune of 20 per cent but it should not be as a matter of rule as there are certain criteria which have to be noticed above. In the case of Rakesh Ranjan Srivastava (Supra) the following was observed:

"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."

14. Applying the judgment in the facts of the case and irresistible conclusion stands drawn that the aforesaid exercise as enunciated by the Hon'ble Apex Court has not been taken into note of. Despite notice since opposite party no.2 is not present before this Court, thus, this Court has no option but to set aside both the orders which are impugned and to remit the matter back to the court below to pass a fresh orders. Accordingly the present application is being decided in the following terms:

a. The summoning order dated 30.09.2024 passed by learned Additional District & Sessions Judge, Agra and 21.02.2024 passed by Learned Presiding Officer, Additional Court no.2 Agra in complaint case no. 8105 of 2021, U/s 138 of N.I. Act are quashed.

b. The matter stands remitted back to the trial court to decide the proceedings U/s 143 (A) a fresh strictly as per the mandate of Hon'ble Apex Court in the case of Rakesh Ranjan Srivastava (Supra).

c. For early disposal, the certified copy of the order be furnished before the court below by 25.07.2025.

d. The passing of the order may not construed to the expression that this court has adjudicated the matter on the merits. However the court below is to pass an order strictly in accordance with law.