Bombay High Court
M/S Bajaj Constructions Through Mr. ... vs State Of Maharashtra And Ors on 10 June, 2024
Author: N. J. Jamadar
Bench: N. J. Jamadar
2024:BHC-AS:22784
CRIWPST22150-23.DOC
Santosh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
Digitally
WRIT PETITION (ST) NO. 22150 OF 2023
signed by
SANTOSH
SANTOSH SUBHASH
SUBHASH KULKARNI
KULKARNI Date:
2024.06.10
M/s. Bajaj Constructions
17:58:03
+0530 through its Sole Proprietor Mr. Manish
Bajaj, Age - 44 years, Occupation -
Business, Having office at 101, Shanti
Kuttir, M. G. Road, Kandivali (West),
Mumbai - 400 067
AND
Residing at Flat No.9, Versova Sea
Glimpse CHS Ltd., 51, J. P. Road, Aram
Nagar, Part-2, Versova, Andheri (West),
Mumbai - 400 061. ...Petitioner
Versus
1. The State of Maharashtra
2. M/s. Paint Art, having their office at:
Survey No.59, Khasi Wadi, Gamdevi
Hutment, Indira Nagar, Santacruz
(East), Mumbai - 400 055
3. Shakeel Khan
having office at:
Survey No.9, Khasi Wadi, Gamdevi
Hutment, Indira Nagar, Santacruz
(East), Mumbai - 400 055. ...Respondents
Mr. Niranjan Mundargi a/w Manisha Prajapati, i/b Dhiren
Shah, for the Petitioner.
Mr. Prashant Jadhav, APP for the State/Respondent No.1.
Mr. Sayaji Nangre, for Respondent No.2.
CORAM: N. J. JAMADAR, J.
RESERVED ON: 21st MARCH, 2024
PRONOUNCED ON: 10th JUNE, 2024
1/21
::: Uploaded on - 10/06/2024 ::: Downloaded on - 11/06/2024 14:07:10 :::
CRIWPST22150-23.DOC
JUDGMENT:
-
1. Rule. Rule made returnable forthwith and with the
consent of the counsel for the parties, heard finally.
2. This petition under Article 227 of the Constitution of India
and Section 482 of the Code of Criminal Procedure, 1973 takes
exception to a judgment and order dated 19th August, 2023
passed by the learned Additional Sessions Judge, Greater
Bombay, in Criminal Revision Application No.400 of 2023,
whereby the learned Additional Sessions Judge allowed the
revision setting aside an order passed by the learned
Metropolitan Magistrate, 30th Court, Kurla, on 10th April, 2023
rejecting an application (Exhibit-11) for direction to pay interim
compensation under Section 143A of the Negotiable Instruments
Act, 1881 ("NI Act, 1881"), and direct the petitioner - accused to
deposit 20% of the amount of the cheques by way of interim
compensation.
3. Shorn of superfluities, the background facts necessary for
the determination of this petition can be stated as under:
(a) For the sake of clarity and convenience, parties are
hereinafter referred to in the capacity in which they are arrayed
before the learned Magistrate in CC No.97/SC/2022.
CRIWPST22150-23.DOC
(b) Mr. Shakeel Khan - respondent No.3 is the
Proprietor of M/s. Paint Art - respondent No.1/complainant.
M/s. Paint Art is engaged in the business of internal and
external painting of building, plumbing and reconstruction
work. M/s. Bajaj Construction is the sole proprietary concern
of Manish Bajaj - accused No.2. Accused No.2 also deals in the
business of building construction and real estate development.
(c) One of the buildings namely; Vandana Building, then
being developed by accused was incomplete. At the instance of
the accused, the complainant carried out balance civil work of
the said building. Accused had agreed to pay consideration of
Rs.1,70,00,000/-. Despite execution of the entire work in May,
2019, the accused committed default in payment of the cost of
civil work. Eventually, on 7th September, 2021, accused No.2
affirmed an affidavit acknowledging the liability to pay the said
amount of Rs.1,70,00,000/- and had drawn four cheques on
City Union Bank, Khar (W), payable on 20th October, 2021 for an
amount of Rs.42,50,000/- each, aggregating to
Rs.1,70,00,000/-, towards discharge of the said liability.
(d) Upon presentment, those cheques were returned
unencashed on 27th October, 2021. At the instance of accused
No.2, the cheques were again presented on 23 rd December, 2021
CRIWPST22150-23.DOC
and they were again returned unencashed on 23 rd December,
2021. A demand notice was issued on 7th January, 2023.
Despite service of the demand notice, the accused committed
default in payment of the amount covered by the cheques.
Hence, the complaint for the offence punishable under Section
138 of the NI Act, 1881.
(e) Upon being served with the summons, the accused -
petitioner appeared. The complainant filed an application for a
direction to the accused to pay interim compensation (Exhibit-
11). The accused resisted the application by filing a reply
(Exhibit-16) contending, inter alia, that a substantial portion of
the amount covered by the subject cheques was, in fact, paid to
the complainant in cash and through banking channels. Copies
of the vouchers evidencing the payment of the amount and
extract of the bank accounts were annexed to the reply. It was
contended that the complainant had misused the custody of the
subject cheques and suppressed the fact that a substantial
portion of the amount was already repaid. Resultantly, the
presentment of the cheques, without acknowledging the part
payment having already received, was illegal and, therefore, the
cheques cannot be said to have been drawn in discharge of a
legally enforceable debt or liability.
CRIWPST22150-23.DOC
(f) By an order dated 10th April, 2023, the learned
Metropolitan Magistrate was persuaded to reject the application
opining, inter alia, that the accused appeared before the Court
on 7th December, 2022 and on the very day the plea of the
accused was recorded. Thus, there was no attempt to delay the
trial on the part of the accused. Secondly, in the reply, the
accused had given a plausible explanation and, thus, there was
a probability of rebuttal of presumption of existence of a legally
enforceable debt.
(g) Being aggrieved, the complainant preferred a revision
application before the learned Sessions Judge, Greater Bombay.
(h) The learned Additional Sessions Judge was of the
view that the learned Magistrate failed to exercise the
jurisdiction conferred under Section 143A of the NI Act, 1881 in
a lawful manner. The factors, which were germane for the
determination of the application under Section 143A of the NI
Act, 1881 were not kept in view by the learned Magistrate. Since
there appeared no dispute regarding the contract between the
complainant and accused and issue of the subject cheques, the
learned Magistrate ought to have awarded interim
compensation. Holding thus, the learned Additional Sessions
Judge allowed the revision application and directed the accused
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to deposit 20% of the amount covered by the cheque by way of
interim compensation, under Section 143A of the NI Act, 1881.
(i) Being aggrieved the accused has invoked the writ
jurisdiction of this Court.
4. I have heard Mr. Mundargi, the learned Counsel for the
petitioner, Mr. Jadhav, the learned APP for the State -
respondent No.1, and Mr. Nangre, the learned Counsel for
respondent Nos.2 and 3 - complainant. With the assistance of
the learned Counsel for the parties, I have also perused the
material on record.
5. Mr. Mundargi, the learned Counsel for the petitioner,
submitted that the learned Additional Sessions Judge
approached the matter as if the provisions contained in Section
143A of the NI Act, 1881 are mandatory in nature. In the
process, the learned Additional Sessions Judge lost sight of the
fact that the learned Magistrate had declined to exercise the
discretion for justifiable reasons. There was no reason to
interfere with a discretionary order passed by the learned
Magistrate. Secondly, the learned Additional Sessions Judge did
not consider the question of the quantum of interim
compensation to be awarded in a correct perspective and
mechanically directed the accused to pay by way of interim
CRIWPST22150-23.DOC
compensation 20% of the amount covered by the cheques; the
maximum which can be awarded under Section 143A of the NI
Act, 1881. To bolster up the submissions that the provisions
contained in Section 143A of the NI Act, 1881 are directory in
nature and even when the Court comes to a conclusion that
interim compensation is required to be awarded, the Court is
enjoined to record reasons for determining the quantum of
compensation to be so awarded, Mr. Mundargi placed reliance
on the decision of a learned Single Judge of this Court in the
case of Ashwin Ashokrao Karokar vs. Laxmikant Govind Joshi 1
and the judgment of the Supreme Court in the Rakesh Ranjan
Shrivastava vs. State of Jharkhand and another2.
6. Mr. Sayaji Nangre, the learned Counsel for respondent
Nos.2 and 3 - complainant, supported the order passed by the
learned Additional Sessions Judge. It was urged that the
learned Additional Sessions Judge has justifiably corrected the
error in exercise of the discretion committed by the learned
Metropolitan Magistrate. Laying emphasis on the fact that there
was overwhelming material to indicate that the accused had
drawn the cheques towards the discharge of the liability, as is
evident from the affidavit affirmed by the accused, it was
1 2022 SCC Online Bom 8577.
2 2024 SCC OnLine SC 309.
CRIWPST22150-23.DOC
urged that the learned Additional Sessions Judge correctly
exercised the discretion to award interim compensation lest the
provisions contained in Section 143A of the NI Act, 1881 would
be rendered otiose.
7. Mr. Nangre placed reliance on the decision of the Supreme
Court in the case of Hiten P. Dalal vs. Bratindranath Banerjee 3,
to demonstrate the nature of the presumptions envisaged by the
provisions contained in Sections 118, 138 and 139 of the NI Act,
1881. In the face of the said presumptions, the learned
Magistrate could not have observed that it was probable that the
accused could succeed in dispelling the presumptions, urged
Mr. Nangre.
8. Section 143A of the NI Act, 1881 came to be inserted by
the Negotiable Instruments (Amendment) Act 20 of 2018. It
reads as under:
''143A. (1) Notwithstandinh anything contained in the Code
of Criminal Procedure, 1973, 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),
3 AIR 2001 Supreme Court 3897.
CRIWPST22150-23.DOC
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 year, 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.
(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, shall be reduced by
the amount paid or recovered as interim compensation
under this section.''
9. The statement of the objects and reasons for inserting
Section 143A of the NI Act, 1881 reads as under:
"The Negotiable Instrument Act, 1881 (the Act) was
enacted to define and amend the law relating to Promissory
Notes, Bills of Exchange and Cheques. The said Act has
been amended from time to time so as to provide, inter alia,
speedy disposal of cases relating to the offence of dishonour
of cheques. However, the Central Government has been
receiving several representations from the public including
trading community relating to pendency of cheque
dishonour cases. This is because of delay tactics of
unscrupulous drawers of dishonoured cheques due to easy
filling of appeals and obtaining stay on proceedings. As a
result of this, injustice is caused to the payee of a
dishonoured cheque who has to spend considerable time
and resources in court proceedings to realise the value of the
cheque. Such delays compromise the sanctity of cheque
transactions.
2. It is proposed to amend the said Act with a view to
address the issue of undue delay in final resolution of
cheque dishonour cases so as to provide relief to payees of
dishonoured cheques and to discourage frivolous and
unnecessary litigation which would save time and money.
The proposed amendments will strengthen the credibility of
cheques and help trade and commerce in general by allowing
lending institutions, including banks, to continue to extend
financing to the productive sectors of the economy.
CRIWPST22150-23.DOC
3. It is, therefore, proposed to introduce the
Negotiable Instruments (Amendment) Bill, 2017 to provide,
inter alia, for the following, namely:-
(i) to insert a new section 143A in the said Act to
provide that the Court trying an offence under section 138
may order the drawer of the cheque to pay interim
compensation to the complainant, in a summary trial or a
summons case, where he pleads not guilty to the accusation
made in the complaint; and in any other case, upon framing
of charge. The interim compensation so payable shall be
such sum not exceeding twenty per cent, of the amount of
the cheque; and
(ii) to insert a new section 148 in the said Act so as
to provide that in an appeal by the drawer against conviction
under section 138, the Appellate Court may order the
appellant to deposit such sum which shall be a minimum of
twenty per cent, of the fine or compensation awarded by the
trail court.
4. The Bill seeks to achieve the above objectives."
(emphasis supplied)
10. The Parliament, as is evident, was anxious to address the
issue of undue delay in the disposal of the complaints for the
offence punishable under Section 138 of the NI Act, 1881. It
was experienced that unscrupulous drawers resorted to dilatory
tactics to delay the disposal of the complaints under Section 138
of the NI Act, 1881 and thereby cause prejudice to the payee,
who was deprived of the amount covered by the cheque. The
sanctity of the transaction through cheque was thus eroded.
Therefore, as a measure to compensate the payee, the
Parliament considered it appropriate to vest power in the Court
to award interim compensation awaiting the adjudication of the
guilt.
CRIWPST22150-23.DOC
11. Evidently, the text of Section 143A(1) makes it clear that
the power to award interim compensation is discretionary as the
Parliament as used the word, "may". The factors which would
weigh with the Court in awarding the interim compensation,
though not spelled out by the text of the provisions contained in
Section 143A yet are not difficult to discern. Prima facie
compliance of statutory requirement to invoke Section 138 of the
NI Act, 1881, prima facie merit of the case of the complainant;
the nature of the underlying transaction; the nature of the
defence, if any, put-forth by the drawer; probability of dispelling
the presumptions under Section 118 and 139 of the NI Act,
1881; the circumstances of the case; conduct of the parties and
the capacity of the drawer to pay the interim compensation, if
awarded, are few of the factors which are germane for the
determination of an application for grant of interim
compensation under Section 143A of the NI Act, 1881.
12. In the case of Ashwin Karokar (supra) a learned Single
Judge of this Court held that the provisions of Section 143A of
the NI Act, 1881 are directory and not mandatory. The
observations of the Court in paragraph 43 are material and
hence extracted below:
"43. Section 143-A of the N.I. Act, though enacted with an
intent to ensure speedy disposal of the proceeding pending
CRIWPST22150-23.DOC
under Section 138 of the N.I. Act, the said intent, insofar as
Section143-A of the N.I. Act is concerned, does not make the
provision mandatory, as what is conferred upon the Court by
virtue of the said provision is a discretion to direct interim
compensation and no right is created in the complainant
under it, to demand the entitlement to compensation. Grant
of interim compensation, would be at the discretion of the
Court, based upon consideration of various factors, such as
(a) whether the requirements of Section 138 of the N.I. Act,
were fulfilled (b) whether the pleadings disclose the drawing
of the presumption (c) whether the proceedings were within
limitation and (d) whether prima facie a legal debt or liability
was disclosed from the complaint or the notice of demand
preceding it, and factors as such [see : B.R. Upadhya and
Anant H. Ulahalkar (supra)]."
(emphasis supplied)
13. The learned Single Judge further held that the Court has
to record reasons to determine the quantum of interim
compensation, if it comes to the conclusion that interim
compensation is required to be awarded in the given
circumstances of the case; which can be anywhere up to 20% of
the amount covered by the cheques.
14. In the case of Rakesh Shrivastava (supra) the Supreme
Court considered the question as to whether the provisions
contained in Section 143A of the NI Act, 1881 are directory or
mandatory. After analysing the provisions of Section 143A and
comparing and contrasting the same with Section 148 of the NI
Act, 1881, the Supreme Court ruled that the provisions under
Section 143A will have to be held as a directory and not
mandatory. And the word "may" used in Section 143A, cannot
be construed or interpreted as "shall". Thus, the power under
CRIWPST22150-23.DOC
Sub-section (1) of Section 143A is discretionary. The Supreme
Court enunciated as under:
"16. In the case of Section 143A, the power can be exercised
even before the accused is held guilty. Sub-section (1) of
Section 143A provides for passing a drastic order for payment
of interim compensation against the accused in a complaint
under Section 138, even before any adjudication is made on
the guilt of the accused. The power can be exercised at the
threshold even before the evidence is recorded. If the word
'may' is interpreted as 'shall', it will have drastic consequences
as in every complaint under Section 138, the accused will
have to pay interim compensation up to 20 per cent of the
cheque amount. Such an interpretation will be unjust and
contrary to the well-settled concept of fairness and justice. If
such an interpretation is made, the provision may expose
itself to the vice of manifest arbitrariness. The provision can
be held to be violative of Article 14 of the Constitution. In a
sense, sub-section (1) of Section 143A provides for penalising
an accused even before his guilt is established. Considering
the drastic consequences of exercising the power under
Section 143A and that also before the finding of the guilt is
recorded in the trial, the word "may" used in the provision
cannot be construed as "shall". The provision will have to be
held as a directory and not mandatory. Hence, we have no
manner of doubt that the word "may" used in Section 143A,
cannot be construed or interpreted as "shall". Therefore, the
power under sub-section (1) of Section 143A is discretionary."
(emphasis supplied)
15. In the said case, the Supreme Court exposited factors to
be considered while exercising the discretion under Section
143A. The observations in paragraphs 19 and 22 are material
and hence extracted below:
19. When the court deals with an application under
Section 143A of the N.I. Act, 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 under sub- section (1)
of Section 143A. The presumption under Section 139 of the
N.I. Act, by itself, is no ground to direct the payment of
interim compensation. The reason is that the presumption is
rebuttable. The question of applying the presumption will
arise at the trial. Only if the complainant makes out a prima
CRIWPST22150-23.DOC
facie case, a direction can be issued to pay interim
compensation. At this stage, the fact that the accused is in
financial distress can also be a consideration. Even if the
Court concludes that a case is made out for grant of interim
compensation, the Court will have to apply its mind to the
quantum of interim compensation to be granted. Even at
this stage, the Court will have to consider various factors
such as the nature of the transaction, the relationship, if
any, between the accused and the complainant and the
paying capacity of the accused. If the defence of the accused
is found to be prima facie a plausible defence, the Court may
exercise discretion in refusing to grant interim
compensation. We may note that the factors required to be
considered, which we have set out above, are not exhaustive.
There could be several other factors in the facts of a given
case, such as, the pendency of a civil suit, etc. While
deciding the prayer made under Section 143A, the Court
must record brief reasons indicating consideration of all the
relevant factors.
.............
22. 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.
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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."
(emphasis supplied)
16. In the light of the aforesaid exposition of law, a prima facie
evaluation of the merits of the complainant's claim and the
defence of the accused is warranted to adjudge as to whether a
case for grant of interim compensation is made out. In the
event the defence of the accused is found to be prima facie
plausible, the Court may exercise discretion in refusing to grant
interim compensation. Furthermore, if the Court finds that
interim compensation has to be awarded it is required to pose
unto itself the question of appropriate quantum of the interim
compensation. 20% of the amount covered by the cheque,
which is the upper threshold, cannot be awarded as a matter of
course.
17. On the aforesaid touchstone, reverting to the facts of the
case, the thrust of the submission on behalf of the complainant
was that since there is an affidavit which evidences the issue of
cheques, the existence of legally enforceable liability can hardly
be contested. Placing reliance on the decision of the Supreme
Court in the case of Hiten Dalal (supra) Mr. Nangre would urge
that since the presumptions contained in Sections 118 and 139
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of the NI Act, 1881 are presumptions of law, the award of interim
compensation cannot be faulted at.
18. I find it rather difficult to accede to the broad submission
sought to be canvassed by Mr. Nangre premised on the
presumptions under Sections 118 and 139 of the NI Act, 1881.
In fact, in the case of Rakesh Shrivastava (supra), the Supreme
Court enunciated in clear and explicit terms that the
presumption under Section 139 of the NI Act, 1881, by itself, is
no ground to direct the payment of interim compensation. The
reason is that the presumption is rebuttable and the question of
application of presumption will arise at the trial. Thus, only
when the complainant makes out a prima facie case, a direction
can be issued to pay an interim compensation.
19. In the case at hand, in the reply to the application, the
accused alleged, inter alia, that a substantial part of the
amount covered by the cheques was paid in cash and the said
fact was evidenced by the vouchers. In addition, a sum of
Rs.19,09,750/- was paid through the banking channels. The
copies of the invoices were annexed to the reply. Likewise,
copies of the extracts of the bank accounts were tendered to
bolster up the case that a substantial part of the amount
covered by the cheques was paid to the complainant.
CRIWPST22150-23.DOC
20. At this stage, the Court has to be on guard as any
expression of opinion on the probability of defence may bear
upon the trial. However, the learned Magistrate, had on the
basis of the material on record opined that the accused had
given a plausible explanation to show that the amount, as
claimed by the complainant, was not due and thus there was a
probability of rebuttal of the presumptions under the NI Act,
1881. In view of the above, the pivotal question would be,
whether the said inference can be said to be perverse or so
legally infirm as to warrant interference in exercise of revisional
jurisdiction?
21. Prima facie, the finding of the learned Metropolitan
Magistrate does not appear to be based on no material. Copies
of the vouchers and the extracts of the bank accounts, allegedly
evidencing the payment by the accused to the complainant,
were tendered alongwith reply filed by the accused. Prima facie,
an inference could not have been drawn that defence raised by
the accused appeared to be bald and unsubstantiated. Indeed,
whether the defence raised by the accused was such as to
dislodge the presumptions under NI Act, 1881 would be a matter
for adjudication at the trial. However, the existence of adequate
CRIWPST22150-23.DOC
material to make an endeavour to dislodge the presumptions
was brought on record.
22. The learned Metropolitan Magistrate was also of the view
that the conduct of the accused was not such that an inference
of dilatory approach could be drawn against the accused.
The facts that upon being served with the summons, the
accused appeared before the Court and his plea was recorded
on the very day, and the accused made no attempt to prolong
the matter, weighed with the learned Magistrate in declining to
exercise the discretion to award interim compensation.
23. The learned Additional Sessions Judge was critical of the
aforesaid approach of the learned Magistrate. In the view of the
learned Additional Sessions Judge, that could not have been
considered as a factor for declining to exercise the discretion to
award the compensation.
24. In my view, the aspect of dilatory approach of the accused
cannot be said to be wholly irrelevant. It is true the mere fact
that the accused regularly appeared before the Court and did
not attempt to prolong the trial cannot be the sole consideration
for declining to exercise discretion to award compensation under
Section 143A. However, as noted above, the measure of interim
compensation was introduced as the unscrupulous drawers of
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dishonored cheques resorted to dilatory tactics to prevent
expeditious disposal of the complaint under Section 138 of the
NI Act, 1881.
25. In the totality of the circumstances, in my view, the order
passed by the learned Metropolitan Magistrate did not suffer
from such legal infirmity as to warrant interference in exercise
of the revisional jurisdiction. Since the order passed by the
learned Metropolitan Magistrate was discretionary in nature, it
was not open to the revisional Court to lightly interfere with the
exercise of discretion by the Magistrate, unless it appeared that
the discretion was exercised in an arbitrary manner by either
ignoring the relevant material or taking into account irrelevant
material. Nor could the revisional jurisdiction have been
exercised only for the reason that on the same set of facts a
different view was possible.
26. The second ground of challenge to the impugned order on
the premise that the learned Additional Sessions Judge did not
advert to the question of quantum of compensation while
awarding interim compensation under Section 143A of the NI
Act, 1881 appears to be well-merited. The impugned order
singularly lacks any consideration as regards the determination
of quantum of compensation.
CRIWPST22150-23.DOC
27. As noted above, in the case of Rakesh Shrivastava (supra)
the Supreme Court has enunciated in clear and explicit terms
that even if the Court concludes that a case is made out for
grant of interim compensation, the Court will have to apply its
mind to the quantum of interim compensation, to be awarded.
Impugned order is conspicuously silent on the said aspect of
quantum of interim compensation. I am, therefore, inclined to
hold that the impugned order deserves to be interfered with on
the said count as well.
28. The conspectus of aforesaid consideration is that the
petition deserves to be allowed.
29. Hence, the following order:
:ORDER:
(i) Writ petition stands allowed.
(ii) The judgment and order passed by the learned Additional
Sessions Judge stands quashed and set aside.
(iii) Order passed by the learned Metropolitan Magistrate
dated 10th April, 2023 stands restored.
(iv) Application for interim compensation (Exhibit-11) in CC
No.97/SC/2022 stands rejected.
CRIWPST22150-23.DOC
(v) By way of abundant caution, it is clarified that the
observations made hereinabove are confined to the
determination of entitlement of interim compensation
under Section 143A of the NI Act, 1881 and they shall not
be construed as an expression of opinion on the guilt or
otherwise of the accused, and the trial Court shall not be
influenced by any of the observations while deciding CC
No.97/SC/2022.
Rule made absolute in the aforesaid terms.
No costs.
[N. J. JAMADAR, J.]
