Gauhati High Court

Page No.# 1/4 vs Aariz Garments And Anr on 5 May, 2025

Author: Parthivjyoti Saikia

Bench: Parthivjyoti Saikia

Page No.# 1/4

GAHC010010622024

2025:GAU-AS:5517

THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

Case No. : Crl.Rev.P./24/2024

WAHID AHMED KHAN
S/O LATE NASIR AHMED KHAN
R/O LOHARPATTY, TAMULBARI, P.O. DIBRUGARH, P.S. DIBRUGARH IN
THE DISTRICT OF DIBRUGARH, ASSAM

VERSUS

AARIZ GARMENTS AND ANR
SITUATED AT NAI SADAK, VARANASI, UTTAR PRADESH, REP. BY ITS
PROPRIETOR, MD. NAFIS KHAN,
S/O MD. NASEEM KHAN
R/O CK 63/56 CHHOTI PYARI,
NEAR MINNA KHAN MASJID BANDH GALI, VARANASI, UTTAR PRADESH-
221001

2:MD. NAFIS KHAN
S/O MD. NASEEM KHAN
R/O CK 63/56 CHHOTI PYAERI
NEAR MINNA KHAN MASJID BANDH GALI
VARANASI
UTTAR PRADESH- 22100

Advocate for the Petitioner : MR. P BORA, MS K SARMA,MS K BHATTACHARYYA,MR H K
SARMA

Advocate for the Respondent : MR. B CHAKRABORTY, MS. RIA TIWARI,MRS P HAZARIKA
Page No.# 2/4

BEFORE
HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA

ORDER

05.05.2025 Heard Mr. P Bora, learned Senior Counsel assisted by Ms. K. Bhattacharyya, learned counsel for the petitioner and Mr. B Chakraborty, the learned counsel appearing for the respondents.

2) This application has been filed under Section 397/401 read with Section 482 of the Code of Criminal Procedure, 1973, challenging the order dated 21.11.2023 passed by the learned Judicial Magistrate First Class, Dibrugarh in N.I. Case No. 54/2021.

3) The petitioner is a complainant before the learned Trial Court. On 28.06.2023, he filed an application before the Court, praying for a direction asking the respondents to deposit 20% of the cheque amount.

4)       The respondents filed a formal objection.

5)       The learned Trial Court refused the prayer of the petitioner on the ground that the

petitioner did not state the ground as to why the respondent should be directed to deposit 20% of the cheque amount.

6) Mr. Bora has relied upon the Judgment of the Hon'ble Supreme Court that was delivered in "Rakesh Ranjan Shrivastava Vs. The State of Jharkhand & Another ". Paragraph 19 of the said Judgment is quoted as under -

"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 Page No.# 3/4

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."

7) Mr. Chakraborty has supported the order of the learned Trial Court by stating that after a long period of time, the said application was filed by the complainant/petitioner and it was an afterthought.

8) I have heard the submissions made by the learned counsel of both sides.

9) The learned Trial Court has correctly held that the provisions of Section 143A is a directory provision; but when the Court acts on the basis of a directory provision, the Court has to show a reason.

10) This Court is of the opinion that the learned Trial Court has erroneously held that it is the complainant who should have shown the reason as to why the accused should be directed to deposit 20% of the cheque amount. Rather, it is the Court which should have showed the reason as to why the direction, asking the accused to deposit 20% of the cheque amount should be rejected or allowed.

11) Therefore, the impugned order dated 21.11.2023 passed by the learned JMFC, Dibrugarh in N.I. Case No. 54/2021 is set aside.

12) The matter is remanded to the learned Trial Court to decide it afresh.

13) The Trial Court shall decide the matter by showing the reason as to why it would be allowing or it would not be allowing the accused to deposit 20% of the cheque amount.