Calcutta High Court (Appellete Side)

Sri Nilkanta Kali vs V.T.R. Marketing on 27 September, 2022

               IN THE HIGH COURT AT CALCUTTA
                (Criminal Revisional Jurisdiction)
                         APPELLATE SIDE


Present:

The Hon'ble Justice Shampa Dutt (Paul)




                         C.R.R. 2613 of 2019


                          Sri Nilkanta Kali
                                Vs.
                         V.T.R. Marketing.



For the Petitioner                : Mr. Uttam Kr. Bhattacharrya,
                                   Mr. K. Mitra.




For the Opposite Party            : Mr. Navanil De,
                                   Mr. R. Chakraborty,
                                   Mr. S. Ghosh,
                                   Mr. S. Dey.



 Heard on                         : 22.09.2022

Judgment on                       : 27.09.2022
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Shampa Dutt (Paul), J.:

       The criminal revisional application has been   preferred against

order dated 13.12.2018 directing the petitioner to pay interim

compensation under Section 143A of the Negotiable Instrument Act

and order dated 02.08.2019 wherein prayer for review was rejected in

CR Case no. 86 of 2018 under Section 138 of Negotiable Instrument

Act.

       The complainant/opposite party filed an application against the

accused/petitioner under Section 138 of the N.I. Act, 1881 before the

learned Chief Judicial Magistrate, Paschim Medinipur against the

petitioner inter alia praying for granting relief as prayed for on the

grounds as stated therein. The said application has been registered as

C.R. Case No. 86 of 2018. Subsequently the said case has been

transferred to the Ld. Court of Judicial Magistrate, 3rd Court, Paschim

Medinipur for taking necessary steps for disposal thereof.

       Mr. Uttam kumar Bhattacharrya, learned Counsel for the

petitioner/accused submits that in course of day to day business the

accused/petitioner issued an A/C payee cheque no. 401131 of Rs.

11,30,389/- drawn on Punjab National Bank, Gobardhanpur, Hour,

District-Purba Medinipur in favour of the complainant, a partnership

firm. The complainant deposited the said cheque but the same has

been dishonoured for "funds insufficient" and was returned to the

complainant vide Memo dated 29.12.2017.
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      Thereafter despite receipt of the Notice dated 10.01.2018 the

accused did not take steps for payment of the said amount.

      On 28.10.2018 the learned Judicial Magistrate started the

proceedings against the accused/petitioner.

      In the said case, by an order dated 13.12.2018 the accused was

granted bail on the condition as stated therein.

      By an order dated 13.12.2018 the Ld. Magistrate was also

pleased   to   direct   the   complainant     inter   alia   to   pay   the

complainant an amount of Rs. 1,13,038/- as interim compensation

as per Section 143A of the Negotiable Instruments (Amendment)

Act, 2018 within Sixty day from 13.12.2018 as the accused

pleaded "Not guilty" of the charge made against him.

      It is the further case of the petitioner that the complainant had

not filed any application praying for interim compensation under

Section 143A of the N.I. Act, 2018. But the learned Magistrate passed

the impugned order dated 13.12.2018.

      It is further submitted by the learned lawyer for the petitioner

that the said interim payment of compensation as per Section 143A is

applicable in respect of the cases filed after the date of the said N.I.

Amendment Act, 2018 came into force but the cases which are filed

before the date of effect of the said Amendment Act, 2018 will not come

under the operation of the said Section 143A and as such the

impugned order dated 13.12.2018 is not in accordance with law and

the said provision of Section 143A of the N.I. Act is not applicable in
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criminal case no. 86 of 2018 as the said case was filed prior to the

coming into force of the said provision of the Act and as such the

impugned order is liable to be quashed and set aside.

      The petitioner then filed an application dated 17.04.2019 under

Section 362 of the Cr.P.C. praying for recall/review of the order dated

13.12.2018

The learned Magistrate vide his order dated 02.08.2019 on

hearing both sides rejected the said application on the ground that the

Court could not alter or review its order under Section 362 Cr.P.C.

A criminal revision case no. 565 of 2019 was then filed before

the learned District and Sessions Judge, Paschim Medinipur against

the said order. The said revision was not admitted by the said Court

and as such the petitioner has approached this Court praying for

setting aside the said orders and quashing of the same.

The learned lawyer for the petitioner has relied upon the ruling

cited in G. J. Raja vs. Tejraj Surana in Criminal Appeal no. 1160

of 2019 (arising out of Special Leave Petition (Criminal) No. 3342

of 2019) dated 30.07.2019 in support of his contention.

The learned lawyer for the opposite party has fairly submitted

that the petitioner's submission and prayer before this Court is in

accordance with law and further submits that necessary orders may be

passed as deemed fit and proper by this Court and the matter may be

sent back for resumption of trial by the learned Magistrate in

accordance with law.

Heard both sides in full. Perused the materials on record,

including the orders under revision and the facts and circumstances of

the case. Considered. Admittedly, the complaint case before the Trial

Court was filed on 14.02.2018 and the provision of Section 143A

came into effect by the Act 20 of 2018 with effect from

01.09.2018. The said amendment has been given prospective effect

and thus not retrospective.

In this case the learned Magistrate by his order dated

13.12.2018, on examination of the accused under Section 251 of the

Cr.P.C. wherein the accused/petitioner pleaded not guilty directed the

trial to proceed in summary procedure. The Magistrate further directed

that:-

"As the accused has pleaded not guilty and claim to be tried,

the accused is directed to pay to the complainant Rs. 1,13,038/-

as interim compensation vide Section 143A of the Negotiable

Instruments (Amendment Act, 2018) within sixty days from

today."

Vide order dated 02.08.2019 the learned Magistrate while

rejecting the accused/petitioners petition under Section 362 Cr.P.C.

passed an order as under:-

"Moreover, after passing of an order no Court can alter or

review the same except to correct a clerical or arithmetical error

vide Sec. 362 Cr.P.C.

In view of the above, the petition dated 17.04.2019 is

rejected."

Section 143A of the Negotiable Instruments Act, 1881 lays down:-

             "[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 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(2 of 11974).

(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.]"

In G.J. Raja vs. Tejraj Surana, the Court considered the

applicability of Section 143A of N.I. Act and while doing so, discussed

the following judgments of the Court:-

(a) Commissioner of Income Tax (Central)-I, New Delhi vs. Vatika

Township Private Limited (2015) 1 SCC1.

(b) Hitendra Vishnu Thakur and others vs. State of Maharashtra and

others 3 (1994) 4 SCC 602.

(1997) 7 SCC 131.

(d) Anil Kumar Goel vs. Kishan Chand Kaura (2007) 13 SCC 492.

And on considering all other circumstances the Court held:-

"In our view, the applicability of Section 143A of the Act must, therefore, be held to be prospective in nature and confined to cases where offences were committed after the introduction of Section 143A, in order to force an accused to pay such interim compensation. We must, however, advert to a decision of this Court in Surinder Singh Deswal and Ors. vs. Virender Gandhi [(2019) 8 SCALE 445] 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.

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....."

Thus it appears from the provision under Section 143A of the N.I.

Act that the said Section came into force on 01.09.2018 and admittedly

the petition of complaint before the Trial Court was filed on 14.02.2018

that is much prior to the coming of effect Section 143A of the N.I. Act

and the said provision being given prospective effect (thus not

retrospective), it is clear that the learned Magistrate wrongly applied the

provision of Section 143A in the present case and as such the said

order dated 13.12.2018 under Section 143A of the N.I. Act in C.R. Case

no. 86 of 2018 being not in accordance with law is liable to be quashed.

Accordingly, the order dated 02.08.2019 rejecting the prayer for

review of order dated 13.12.2018 is also liable to be quashed.

Considering the aforesaid facts and circumstances of the case, the