Rajeev Billa vs State Of U.P. And Another
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Allahabad High Court

Rajeev Billa vs State Of U.P. And Another on 18 July, 2025

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:117207
 
Court No. - 75
 

 
Case :- APPLICATION U/S 528 BNSS No. - 25270 of 2025
 

 
Applicant :- Rajeev Billa
 
Opposite Party :- State of U.P. and Another
 
Counsel for Applicant :- Rishika Raj Singhal,Shivendra Raj Singhal
 
Counsel for Opposite Party :- Alok Kumar Singh,G.A.
 

 
Hon'ble Vikas Budhwar,J.
 

1.Sri Alok Kumar Singh (AoR No.A/A0462/2012) has filed vakalatnama on behalf of the O.P. No.2 and the same is taken on record.

2. Heard Sri Shivendra Raj Singhal, learned counsel for the applicant, Sri Vikas Sharma, learned State Law Officer for the State and Sri Alok Kumar Singh, learned counsel for O.P. No.2.

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 the documents available on record.

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

5. This is an application under Section 528 of BNSS preferred by the applicant for quashing the impugned order dated 31.05.2025 passed by learned ACJM/Additional Civil Judge(SD), Court No. 2, Ghaziabad, in Complaint case No. 1091 of 2023 (Shivkumar Gupta vs. Rajeev Billa) under section 138 N.I. Act, Police Station- Kotwali, District Ghaziabad as well as further proceedings of Complaint Case No. 1091 of 2023 (Shivkumar Gupta vs. Rajeev Billa) under section 138 N.I. Act, Police Station-Kotwali, District Ghaziabad.

6. The applicant herein had earlier approached this Court while filing Application u/s 528 of BNSS No.3709 of 2025, Rajeev Billa vs. State of U.P., in which this Court proceeded to pass following order:-

"19.03.2025

1. Heard Sri Shivendra Raj Singhal, learned counsel for the applicant as well as Sri Vikas Sharma, learned State Law officer for the State and Sri Alok Kumar Singh for the opposite party No. 2.

2.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 the documents available on record. With the consent of the parties, the application is being decided as the fresh stage.

3. This application U/s 528 of BNSS has been filed for quashing the order dated 22.01.2025 passed in Complaint Case No. 1091 of 2023 (Shivkumar Gupta Vs. Rajeev Billa) under Section 138 of N.I. Act, P.S. Kotwali, District Ghaziabad.

4. Learned counsel for the applicant has submitted that proceedings under Section 138 of the NI Act stood initiated by the opposite party No. 2 on 28.09.2020 alleging that the applicant had entered into an agreement to sell with the opposite party No. 2 on 11.02.2019 for selling his flat for which a part consideration of Rs. 12,50,000/- was taken but subsequently, the applicant got another purchaser and did not comply with the terms and conditions due to which opposite party No. 2 insisted for return of the money back and in consonance with the same, a cheque bearing No. 003983 for an amount of Rs. 12,50,000/- dated 24.07.2020 was given to the opposite party No. 2 which for encashment was presented before the bank on 05.08.2020 was returned with the remarks "stop payment". Learned counsel for the applicant submits that the opposite party no. 2 thereafter proceeded to file an Application U/s 143A of the NI Act on 11.11.2022 claiming interim compensation from the applicant out of the total amount of Rs. 12,50,000/-. The applicant objected to the same while filing his response, however, on 03.04.2023, the Court of Additional Chief Judicial Magistrate proceeded to direct the applicant to deposit 10% as an interim compensation. The applicant thereafter, questioned the said order while filing a criminal Revision No. 445 of 2023 which also came to be rejected on 17.07.2023 and thereafter the applicant preferred an Application U/s 528 of BNSS No. 42887 of 2024 which came to be decided on 13.12.2024 requiring the court below to decide the Application U/s 143A of the N.I. Act in terms of the judgment of Hon'ble Apex Court in the case of Rakesh Ranjan Shrivastava Vs. State of Jharkhand and another (2024) 3 SCR 438. Learned counsel for the applicant further submitted that now an order has been passed on 22.01.2025 which though has been made lengthy but the same is not in conformity with the judgment in the case of Rakesh Ranjan Shrivastava (supra). Submission is that even prior to lodging of the complaint under Section 138A of the NI Act on 28.07.2020 and Original Suit No. 434 of 2020 stood instituted by the applicant against the opposite party no. 2, wherein it was asserted that there were three blank cheques and some blank papers and the total amount which were handed over to the opposite party No. 2 and the said cheques were just for the purposes of security but the said cheques have been misused as figures have been filled in though the cheque what was a blank one and it has been sought to be used against the applicant. He submits that the relief sought in the said suit was a decree in the nature of a permanent injunction restraining the defendants therein and the opposite parties herein not to misuse the blank stamp papers and the cheques. Learned counsel for the applicant submits that an application under Order VII Rule 11 of the CPC stood filed by the opposite party No. 2 wherein the factum of the total amount of Rs. 9,00,000/- was not disputed. He, thus, submits that even otherwise the court below has not considered the fact that there happens to be five broad parameters enunciated in the judgment of Rakesh Ranjan Shrivastava (supra) according to which even if the Court concludes that a case is made out to grant of interim compensation, it shall also have to apply its mind to the quantum of interim compensation to be granted and while doing so, the Court will have to consider several factors such as the nature of the transaction, relationship, if any, between the accused and the complainant. Contention is that though the court below while deciding an Application U/s 143A of the NI Act was not supposed to hold a mini trial but it had to accord a prima facie satisfaction with regard to aspect of the matter relating to grant of interim compensation and if it was to be paid, then the quantum in that regard but the court below has not considered the said aspect.

5. Sri Alok Kumar Singh, learned counsel for the opposite party No. 2 has invited the attention of the Court towards page 24 being an Application U/s 482 No. 23852 of 2022 so as to contend that with relation to a proceedings in Complaint Case No. 1279 of 2020 pending in the Court of Chief Judicial Magistrate/Additional Civil Judge (S.D.) Court No. 2 the issue relatable to the agreement to sell dated 11.02.2019 and the cheques were also touched and the Court had not interfered in favour of the applicant. He submits that at the stage of consideration under Section 143A the merits of the matter are not to be gone into only prima facie case is to be considered that too with regard to compensation only.

6. Learned State Law Officer for the State, on the other hand, has supported the arguments of the counsel for the opposite party No. 2.

7. I have heard the arguments of learned counsel for the parties and perused the record carefully.

8. Section 143A of the NI Act 1881 provides for power to direct interim compensation which starts with the words notwithstanding anything contained in the Code of Criminal Procedure, 1973 the Court trying an offence under Section 138 may order drawer of a cheque to pay interim compensation to the complainant, (a) in a summary trial or summons case where he pleads not guilty in the accusation made in the complaint and, (b) in any other case upon framing of charges and sub-section (2) of Section 143A itself provides that the interim compensation under sub-section (1) shall not exceed 20% of the amount of the cheque. Importantly, this Court, at this stage, while deciding the question of interim compensation under Section 143A of the NI Act is not required to conduct mini trial. However, what is to be seen is the prima facie case for award of compensation. Here, the Court finds in the order impugned that the Court has awarded interim compensation to the tune of Rs. 1,25,000/- with 10% of the total amount of Rs. 12,50,000/-. In a civil suit preferred by the applicant herein being OS No. 434 the applicant in para 2 had asserted that an amount of Rs. 9,00,000/- was taken from the opposite party No. 2 and there happens to be three blank cheques as specified in para 3 of the application and in para 9 the applicant has also asserted that the liability is of an amount of Rs. 7,00,000/- along with the interest if it is to be paid. The Court further finds that the applicant in para 6 of the objection has asserted that he is willing to deposit Rs. 7,00,000/- as he has already deposited Rs. 2,00,000/- out of Rs. 9,00,000/-. The said fact has been disputed by the opposite party No. 2.

9. Be that as it may, since one of the conditions being the broad parameters also is with regard to the fact that the Court if it considers that the case is made out for grant of interim compensation it has to apply its mind to the quantum of interim compensation to be granted. The said exercise as it appears has not been considered in correct perspective.

10. Accordingly, the Court is of the opinion that the order dated 22.01.2025 passed by the learned Additional Chief Judicial Magistrate/Additional Civil Judge (S.D.) Court No. 2, Ghaziabad in Complaint Case No. 1091 of 2023 under Section 138 of NI Act, P.S. Kotwali, Ghaziabad is set aside. The matter is remitted back to court below to pass a fresh order strictly in accordance with law within a period of one month from the date of production of certified copy of the order i.e. by 21.04.2025. Since the applicant as well as the opposite party No. 2 are represented through their counsel, thus, it will be deemed that they have full knowledge about the timeline so provided therein. The court below shall not grant any adjournment and, in case, any adjournment is granted, the same should not be beyond three days at a stretch that too on a bona fide reasons.

11. With the aforesaid observations, the application stands disposed of. "

7. Post-remand, now, an order has been passed by the court below on 31.05.2025, allowing interim compensation to the tune of 4% out of a total amount of Rs.12,50,000/-.

8. Questioning the said order, learned counsel for the applicant has preferred the present application.

9. Learned counsel for the applicant has submitted that order dated 31.05.2025 according interim compensation to the tune of 4% cannot be sustained for a simple reason that the court below has taken a ground of Section 139 of the N.I. Act with regard to the presumption in favour of the holder of the cheque for the purposes of according interim compensation, which is not permissible in view of the judgment of the Hon?ble Apex Court in Rakesh Ranjan Srivastava v. State of Jharkand and another: (2024) 3 S.C.R. 438. He further submits that there has been no prima facie satisfaction recorded to the quantum of interim compensation also. He submits that once the Court is of the opinion (though it is disputed that that the case of interim compensation is made out), then too the court has to record satisfaction with respect to the quantum of compensation to be paid. He submits that the order in question suffers from inherent and patent error. According to him, the order be set aside and matter be remitted back.

10. Sri Alok Kumar Singh, learned counsel for O.P. no.2 and Sri Vikas Sharma, learned State Law Officer do not dispute the fact, however, their anxiety is that once the matter stands remitted then the same should be within a time bound period. They further submit that they do not dispute that the provisions under Section 139 of N.I. Act would not come into the play once the interim compensation is being sought to be considered to be accorded and the order itself not happily worded with respect to the quantum of interim compensation. Thus they submit that matter be remitted back to pass fresh orders.

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

12. A perusal of the order 31.05.2025 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:

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."

13. Since the parameter so enumerated in Rakesh Ranjan Srivastava (supra) has not been considered, thus, this Court has no option but to set aside the order dated 31.05.2025.

14. Accordingly, the order dated 31.05.2025 passed by learned ACJM/Additional Civil Judge(SD), Court No. 2, Ghaziabad, in Complaint case No. 1091 of 2023 (Shivkumar Gupta vs. Rajeev Billa) under section 138 N.I. Act, Police Station- Kotwali, District Ghaziabad 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 25.07.2025. 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 stated that appellant shall not seek any unnecessary adjournment.

15. With the above observation, the application stands disposed of.

Order Date :- 18.7.2025

N.S.Rathour

(Vikas Budhwar, J)