Reserved On: 12.08.2024 vs M/S Johli Ram & Sons Through
2024 Latest Caselaw 12398 HP

Himachal Pradesh High Court

Reserved On: 12.08.2024 vs M/S Johli Ram & Sons Through on 28 August, 2024

2024:HHC:7437

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MMO No. 28 of 2024 Reserved on: 12.08.2024

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                                                            Date of Decision: 28.08.2024





Jaung Bahadur                                                                         ...Petitioner
                                               Versus





M/s Johli Ram & sons through
    its proprietor Jholi Ram                                                          ...Respondent





Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1. Yes

For the Petitioner : Mr. Sanjeev Kumar Suri, Advocate. For the Respondent : Mr. Satish Kumar Bhatia, Advocate.

Rakesh Kainthla, Judge

The present petition has been filed against the order dated

01.11.2023, passed by learned Additional Chief Judicial Magistrate

Nadaun, District Hamirpur, Himachal Pradesh vide which the

petitioner (accused before the learned Trial Court) was directed to

deposit 20% of the cheque amount under Section 143-A of the

Negotiable Instruments Act (for short N.I. Act) within 60 days from the

date of the order. (Parties shall hereinafter be referred to in the same

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2024:HHC:7437

manner as they were arrayed before the learned Trial Court for

convenience).

.

2. Briefly stated, the facts giving rise to the present petition

are that the complainant filed a complaint before the learned Trial

Court for the commission of an offence punishable under Section 138

of N.I. Act. The learned Trial Court put notice of accusation to the

accused on 01.11.2023. The accused filed an application seeking

permission to cross-examine the complainant and his witnesses,

which was allowed. The matter was listed for the complainant's

witnesses. It was further directed that the accused would deposit 20%

of the cheque amount under Section 143-A of the N.I. Act within 60

days from the date of the order.

3. Being aggrieved from the order, the accused preferred the

present petition asserting that the learned Trial Court had passed the

order without any application filed on behalf of the complainant. The

order was a non-speaking order and could not have been passed

without considering the relevant facts and giving reasons. Therefore,

it was prayed that the present petition be allowed and the order

passed by the learned Trial Court be set aside.

2024:HHC:7437

4. I have heard Mr. Sanjeev Kumar Suri, learned counsel for

the petitioner/accused and Mr. Satish Kumar Bhatia, learned counsel

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for the respondent/complainant.

5. Mr. Sanjeev Kumar Suri, learned counsel for the

petitioner/accused submitted that the learned Trial Court erred in

passing the order directing the accused to pay the amount of interim

compensation. No application was filed on behalf of the

complainant/respondent seeking the compensation. No opportunity

was provided to the petitioner/accused to place the relevant

circumstances before the Court. The Court passed an order directing

the petitioner/accused to deposit 20% of the cheque amount without

giving detailed reasons. Therefore, he prayed that the present petition

be allowed and the order passed by the learned Trial Court be set

aside. He relied upon the judgment of this Court passed in Jaung

Bahadur Bedi vs M/s Sanjeev Kumar passed in CrMMO No. 29 of 2024,

decided on 26.06.2024 in support of his submission.

6. Mr. Satish Kumar Bhatia, learned counsel for the

respondent supported the order and submitted that no interference is

required with it.

2024:HHC:7437

7. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

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8. The Hon'ble Supreme Court considered the parameters for

granting the compensation under Section 143-A of N.I. Act in Rakesh

Ranjan Shrivastava v. State of Jharkhand, (2024) 4 SCC 419: 2024 SCC

OnLine SC 309, and held that the Court has to prima facie evaluate the

merits of the case and thereafter to apply its mind to the quantum of

interim compensation. It was observed: -

"Factors to be considered while exercising discretion

22. When the court deals with an application under Section 143-A of the NI 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 143-A. The presumption under Section 139 of the NI 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 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.

23. Even if the court concludes that a case is made out for a 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.

2024:HHC:7437

24. 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

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under Section 143-A, the Court must record brief reasons

indicating consideration of all the relevant factors."

9. This judgment was considered by this Court in Jaung

Bahadur Bedi (supra) and it was held: -

"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 a 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

2024:HHC:7437

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

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peculiar facts of a given case, which cannot be

exhaustively stated. The parameters stated above are not exhaustive."

10. It was also held that where no opportunity was granted,

before ordering the interim compensation, such an order is not

sustainable. It was observed: -

"4.

Since in the case at hand, the impugned order, nowhere reveals factum of opportunity, if any, granted to the petitioner- accused by the Court concerned before ordering interim

maintenance, coupled with the fact that there is nothing in the

impugned order to suggests that Court prima facie evaluated the merits of the case as well as defence pleaded by the accused..."

11. In the present case also, the learned Trial Court failed to

consider the relevant factors laid down by the Hon'ble Supreme Court.

Hence, the order passed by the learned Trial Court ordering the

compensation cannot be sustained.

12. Consequently, the present petition is allowed and the

order dated 01.11.2023 passed by learned Trial Court directing the

accused/petitioner to pay compensation of 20% of the cheque amount

is ordered to be set aside. However, this order will not prevent the

learned Trial Court from passing any appropriate order, on an

2024:HHC:7437

application filed under Section 143A of N.I. Act after considering the

relevant factors laid down by the Hon'ble Supreme Court.

.

13 The present petition stands disposed of, so also the

pending application(s), if any.

                                              (Rakesh Kainthla)
                                                   Judge
28th August, 2024
     (ravinder)




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