Mr. Susanta Chakraborty vs Dey'S Construction
2023 Latest Caselaw 3198 Cal

                  IN THE HIGH COURT AT CALCUTTA
               CRIMINAL REVISIONAL JURISDICTION
                           APPELLATE SIDE

The Hon'ble JUSTICE BIBEK CHAUDHURI

                             IA No: CRAN/5/2023
                                      In
                                CRR 89 of 2022

                            Mr. Susanta Chakraborty
                                      Vs.
                              Dey's Construction

      For the petitioner:      Mr. Sayan Chattapadhyay, Adv.,
                               Ms. Payel Shome, Adv.

      For the O.P:             Mr. Debasis Kar, Adv.,
                               Mr. Subhajit Chowdhury, Adv.

Heard on: 03 April, 2023.
Judgment on: 04 May, 2023.

BIBEK CHAUDHURI, J. : -
1.

The present revisional application has been preferred challenging

orders dated 7th October, 2021 and 3rd December, 2021 passed by the

learned Judicial Magistrate, 4th court at Barrackpur and the learned

Judicial Magistrate, 5th Court at Barrackpur in Complaint Case No.C-

448/2020 under Section 138 of the Negotiable Instruments Act.

2. It is submitted on behalf of the petitioner that the opposite party

being a proprietorship concern represented by its sole proprietorship Mrs.

Soma Dey lodged a complaint against him under Section 138 of the

Negotiable Instruments Act. The complaint was initially filed before the

learned Judicial Magistrate, 4th court at Barrackpur alleging, inter alia,

that the accused/petitioner submitted an order of bulk quantity of N-95

(5 layers) Mask and Surgical Mask at a consideration price of

Rs.5,24,608/-. At the time of placing the order the accused/petitioner

paid a sum of Rs.20,000/- in favour of the complainant/opposite party

through bank transfer. After receiving the goods the petitioner issued an

account payee cheque dated 14th August, 2020 amounting to

Rs.5,04,608/- drawn on Jana Small Financial Bank. When the

complainant deposited the said cheque for encashment to her banker, it

was dishonoured due to insufficiency of fund. Thereafter the complainant

issued statuary notice to make payment of the amount involved in the

cheque within the stipulated period of time and on his failure she filed the

complaint against the petitioner on 4th February, 2021 in the 4th Court of

learned Judicial Magistrate. It is further stated by the petitioner that the

opposite party was examined under Section 200 of the Cr.P.C. The

complainant filed her evidence on affidavit in terms of Section 145(1) of

the Negotiable Instruments Act. On perusal of the petition of complaint

and initial deposition of the complainant as well as other materials the

learned Magistrate issued process against the petitioner directing him to

appear/surrender before the trial court on 6th May, 2021. However due to

outbreak of Covid-19 the petitioner could not appear before the trial court

and the case was adjourned to 24th September, 2021. On 24th September,

2021 the petitioner through his learned Advocate prayed for time for his

appearance and the learned Magistrate fixed 7th October, 2021 for service

return and appearance of the accused. On 7th October, 2021 the accused

surrendered before the learned Judicial Magistrate, 4th Court at

Barrckpur and he was released on bail. The complainant also filed an

application under Section 143A of the Negotiable Instruments Act praying

for a direction upon the accused for payment of interim compensation.

The learned Magistrate fixed next date for payment of interim

compensation by the accused without mentioning any mode of payment.

Subsequently the said case was fixed on 3rd December, 2021 for

examination of the accused under Section 251 of the Cr.P.C and payment

by the accused person on the self same date. The learned Advocate for the

accused filed a petition praying for modification of the order dated 7th

October, 2021 along with a petition for adjournment. The prayer for

adjournment was refused and the accused was examined under Section

251 of the Cr.P.C by the learned Magistrate thereafter the case was fixed

for examination of PW1 on 15th March, 2022 and hearing of the petition

under Section 143A of the Negotiable Instruments Act.

3. It is contended on behalf of the petitioner that Section 143 of the

Negotiable Instruments Act states that the Court 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.

4. The grievance of the petitioner is that the application under Section

143A of the Negotiable Instruments Act was allowed on 7th October, 2021

without plea of the petitioner being recorded by the learned Magistrate. It

is also alleged by the petitioner that the learned Magistrate was factually

wrong while passing order dated 3rd December, 2021 stating, inter alia,

that the application under Section 143A of the Negotiable Instruments Act

was not heard and disposed of. The learned Magistrate also acted illegally

fixing the date of the hearing of the application under Section 143A of the

Negotiable Instruments Act on 15th March, 2022 without setting aside the

order dated 7th October, 2021. It is further submitted by the petitioner

that Case No.448/2020 filed by the opposite party was pending before the

learned Judicial Magistrate, 4th Court at Barrackpur passed the order

dated 3rd December, 20121, although on that date the learned Judicial

Magistrate, 4th Court at Barrackpur was present. Thus it is submitted by

the learned Advocate for the petitioner that the orders dated 7th October,

2021 and all subsequent orders are illegal, inoperative and liable to be set

aside.

5. I have heard the learned Advocates for the petitioner and as well as

the opposite party.

6. At the outset it appears to this Court that the accused/petitioner

has been adopting all sorts of dilatory tactics to drag the hearing of

Complaint Case No.C448 of 2020.

7. Section 143A of the Negotiable Instruments Act was incorporated in

the Statue by virtue of Amending Act 20 of 2018 with effect from 1st

September, 2018. Section 143A runs thus:

"143-A 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 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."

8. A plain reading of Section 143A suggests that the Court may in

suitable circumstance order the drawer of the cheque to pay interim

compensation to the complainant. Clause (a) and (b) of Section 143A

speaks of the stage when the trial court may pass an order under Section

143A of the Negotiable Instruments Act.

9. On perusal of the order dated 7th October, 2021 it appears that the

accused surrendered before the Court and he was granted bail. The

complainant also filed an application under Section 143A praying for

direction to pay interim compensation by the accused/petitioner. On 7th

October, 2021 the learned Judicial Magistrate, 4th Court passed the

following order:

"Considering the fact and circumstance and considering the

nature of offence I am inclined to grant bail on Rs.1,000/- on

surety of like amount id to J/c if on bail under Section 143 of

the Negotiable Instruments Act is allowed."

10. It is contended by the learned Advocate for the petitioner that

simultaneously while granting bail to the accused, the application under

Section 143A of the Negotiable Instruments Act filed by the complainant

was allowed.

11. Again it is submitted by the learned Advocate for the petitioner that

on 3rd December, 2021 the accused was examined under Section 251 of

the Cr.P.C and he pleaded not guilty. On that date the petition was filed

by the accused praying for modification of the order dated 7th October,

2021. The said petition was heard and considered it appears that the

petition under Section 143A of the Negotiable Instruments Act has not

been heard and disposed of. The learned Magistrate also held that the

disposal of the said petition as shown in the order dated 7th October, 2021

is clerical error. Therefore, the learned Magistrate took up the said

examination on the date of examination of the accused under Section 251

of the Cr.P.C and passed an order that the petition under Section 143A of

the Negotiable Instruments Act will be heard on the next date. After

recording of plea of the accused, the learned Magistrate fixed 15th March,

2022 for hearing of the petition dated 7th October, 2021 under Section

143A of the Negotiable Instruments Act.

12. By filing a supplementary affidavit, the petitioner has filed a copy of

the order dated 15th March, 2022. The petitioner prayed for adjournment

on the ground that challenging the order dated 7th October, 2021 and 3rd

December, 2021 he has preferred the instant revision and therefore cross-

examination of PW1 and hearing of the petition under Section 143A may

be adjourned. The learned Magistrate adjourned the hearing of the

application under Section 143A of the Negotiable Instruments Act.

However as the accused failed to cross-examine PW1, his opportunity to

cross-examination of PW1 was taken away and next date was fixed on 5th

April, 2022 for examination of the accused under Section 313 of the

Cr.P.C and hearing of the petition under Section 143A of the Negotiable

Instruments Act.

13. After filing of the instant revision this Court called for a report of

the learned Additional Chief Judicial Magistrate, Barrackpur raising the

question as to whether the order dated 3rd December, 2021 was passed by

the learned Judicial Magistrate, 5th Court at Barrackpur and if such order

was passed by the learned Magistrate, 5th Court at Barrackpur, under

what circumstance said order was passed.

14. The learned Additional Chief Metropolitan Magistrate in charge,

Barrackpur submitted a report stating, inter alia, that both the orders

dated 7th October, 2021 and 3rd December, 2021 were passed by the

learned Judicial Magistrate, 4th Court at Barrackpur however in the order

dated 3rd December, 2021 the word "5th J.M." was inadvertently made and

it was absolutely a clerical error.

15. Vide order dated 3rd December, 2021 the learned Magistrate himself

found that the petition under Section 143A of the Negotiable Instruments

Act was not disposed of and on the basis of a petition filed by the accused

the learned Magistrate modified the order dated 7th October, 2021 and

fixed 15th March, 2022 for hearing of the petition dated 7th October, 2021

under Section 143 of the Negotiable Instruments Act.

16. I have already recorded that Section 143A empowers a Court to

pass an order on interim compensation in favour of the complainant

where the accused pleads not guilty to the accusations made in the

complaint. This does not mean that on the date of examination of the

accused under Section 251 of the Cr.P.C the application under Section

143A should mandatorily be disposed of, it can be disposed of at any

point of time. Therefore this Court does not find any illegality or material

irregularity in the order dated 3rd December, 2021 and irregularity in the

order dated 7th October, 2021 which was rectified by the learned

Magistrate himself vide order dated 3rd December, 2021.

17. Subsequently vide order dated 15th March, 2022 the learned

Magistrate takes away right of cross-examination of the complainant by

the accused/petitioner. This Court is of the view that for ends of justice

the accused should be given an opportunity to cross-examine PW1. On

the next date of cross-examination of PW1 fixed by the learned Magistrate,

the application under Section 143A of the Negotiable Instrument Act shall

also be disposed of by the trial court without giving any adjournment to

either of the parties.

18. With the above direction the instant revision is disposed of on

contest. However, under the facts and circumstances, without any costs.

19. All connected application are also disposed of.

(Bibek Chaudhuri, J.)