Kerala High Court
Nisha vs State Of Kerala on 3 October, 2024
Author: Bechu Kurian Thomas
Bench: Bechu Kurian Thomas
2024:KER:73517
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS
THURSDAY, THE 3RD DAY OF OCTOBER 2024 / 11TH ASWINA, 1946
CRL.MC NO. 5413 OF 2024
AGAINST THE ORDER DATED 27.10.2023 IN ST NO.299 OF 2021
OF CHIEF JUDICIAL MAGISTRATE, KOLLAM
PETITIONER/ACCUSED:
NISHA
AGED 41 YEARS
W/O. RAFEEK,
PROPRIETRIX, R.R. EXPORTS,
EP/III/762, ELAMPALLOOR,
KUNDARA, KOLLAM, PIN - 691501
BY ADVS.
P.R.MILTON
R.VISHNURAJ
RESPONDENTS/NA:
1 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, PIN - 682031
2 ANZAR
AGED 50 YEARS
S/O SHAHID,
PROPRIETOR, AJMEER CASHEW COMPANY,
CASHEW PROCESSORS, EXPORTERS & IMPORTERS,
MYLAPORE, UMAYANALLOOR P.O.,
KOLLAM, PIN - 691589
BY ADV ADV.R.NIKHIL
2024:KER:73517
Crl.M.C. No.5413 of 2024
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OTHER PRESENT:
SRI. C.N. PRABHAKARAN,
PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON
03.10.2024, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
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Crl.M.C. No.5413 of 2024
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BECHU KURIAN THOMAS, J.
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Crl.M.C. No.5413 of 2024
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Dated this the 3rd day of October, 2024
ORDER
Petitioner is the accused in S.T.No.299/2021 on the files of the
Chief Judicial Magistrate Court, Kollam. By the impugned order dated
27.10.2023, the learned Magistrate has, directed the accused to pay 20%
of the cheque amount as per Section 143A of the Negotiable Instruments
Act, 1881 (for short 'the N.I Act'). The said order is under challenge in this
petition under Section 482 of the Code of Criminal Procedure, 1973.
2. The power to direct deposit of a percentage of the cheque
amount during the pendency of the proceeding under Section 138 of the
NI Act is relatable to Section 143A. In a recent decision of the Supreme
Court in Rakesh Ranjan Sreevastava v. State of Jharkhand [2024 (2)
KHC 481 (SC)] [2024 INSC 205], it was held that the Section 143A of N.I
Act is discretionary and reasons will have to be specified when such a
discretion is exercised.
3. A perusal of the impugned order dated 27.10.2023 indicates
that the learned Magistrate has not given any reasons for issuing the
direction to deposit 20% of the cheque amount. In the absence of any
reasons, the said direction is contrary to law. Even though no objection is
seen to have been filed by the petitioner, the application under Section
143A requires to satisfy the existence of a prima facie case, and the order
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must reflect reasons in brief, and even the quantum to be deposited must
be arrived at after application of mind. Since none of such parameters
have been borne in mind while directing deposit under Section 143A of
the NI Act, I am of the opinion that the impugned order is liable to be set
aside.
4. Therefore, the order dated 27.10.2023 to the extent it directs
deposit of 20% of the cheque amount within 30 days is hereby set aside.
However, the learned Magistrate shall reconsider the application afresh in
accordance with law bearing in mind the observations in the judgment of
the Supreme Court in Rakesh Ranjan's case (supra), as expeditiously as
possible at any rate within a period of two months from the date of receipt
of a copy of this order.
This criminal miscellaneous case is allowed as above.
Sd/-
BECHU KURIAN THOMAS
JUDGE
jka/03.10.24
2024:KER:73517
PETITIONER'S ANNEXURES
Annexure A ANNEXURE A-THE TRUE COPY OF THE COMPLAINT
RECEIVED BY THE PETITIONER AS ST.299/2021.
Annexure B ANNEXURE B-THE TRUE COPY OF THE PETITION
UNDER SECTION 143A OF THE NEGOTIABLE
INSTRUMENTS ACT,1881 FILED BY THE 2ND
RESPONDENT HEREIN AS CRL.M.P.NO.4588/2023.
Annexure C ANNEXURE C-THE TRUE COPY OF THE ORDER
DATED 27.10.2023 ISSUED BY THE CHIEF
JUDICIAL MAGISTRATE COURT, KOLLAM.
Annexure D ANNEXURE D-THE TRUE COPY OF THE REPLY
NOTICE ISSUED BY THE PETITIONER DATED
16.08.2021.
