Madhya Pradesh High Court
Shiv Kumar vs Vishram (Deceased) Through L.R.S. ... on 6 March, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 MCRC No.9797/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 6th OF MARCH, 2024
MISC. CRIMINAL CASE No. 9797 of 2024
BETWEEN:-
SHIV KUMAR S/O JANAK LAL SONI, AGED ABOUT 52
YEARS, R/O BEHIND BADIMATA MANDIR,
CHINDWARA, DISTRICT CHHINDWARA (MADHYA
PRADESH)
.....APPLICANT
(BY SHRI DEVESH BHOJNE - ADVOCATE)
AND
VISHRAM S/O VIPATLAL GADHEWAL
(DECEASED) THROUGH LEGAL HEIRS
1. ARADHANA W/O VISHRAM GADHEWAL, AGED
ABOUT 45 YEARS, R/O OLD CHHAPAKHANA,
NEAR RUDRATMAK HANUMAN MANDIR,
CHHINDWARA, DISTRICT CHHINDWARA
(MADHYA PRADESH)
2. RITIKA D/O VISHRAM GADHESWAL, AGED
ABOUT 23 YEARS, R/O OLD CHHAPAKHANA,
NEAR RUDRATMAK HANUMAN MANDIR,
CHHINDWARA, DISTRICT CHHINDWARA
(MADHYA PRADESH)
3. VAISHNAVI D/O VISHRAM GADHEWAL, AGED
ABOUT 21 YEARS, R/O OLD CHHAPAKHANA,
NEAR RUDRATMAK HANUMAN MANDIR,
CHHINDWARA, DISTRICT CHHINDWARA
(MADHYA PRADESH)
4. OM S/O VISHRAM GADHEWAL, AGED ABOUT 19
YEARS, R/O OLD CHHAPAKHANA, NEAR
RUDRATMAK HANUMAN MANDIR,
CHHINDWARA, DISTRICT CHHINDWARA
(MADHYA PRADESH)
.....RESPONDENTS
2 MCRC No.9797/2024
This application coming on for admission this day, the court passed
the following:
ORDER
This application under Section 482 of Cr.P.C. has been filed
against order dated 24.01.2024 passed by Sessions Judge, Chhindwara
in CRR No.58/2023 arising out of order dated 20.02.2023 passed by
Judicial Magistrate First Class, Chhindwara in SCNIA No.181/2021 by
which applicant has been directed to deposit 20% of the cheque amount
as per the mandate of Section 143-A of Negotiable Instruments Act.
2. It is submitted by counsel for applicant that High Court of Kerala
at Ernakulam by order dated 17.11.2023 passed in the case of Faizal
Abdul Samad vs. A. N Sasidharan and another in CRL.MC
No.8132/2023 has held that it is mandatory on the part of the Magistrate
to assign reasons for directing to deposit 20% of the cheque amount
because under Section 143-A of Negotiable Instruments Act it is merely
a maximum ceiling and the Magistrate has a discretion to direct for
deposit of lesser amount.
3. Considered the submissions made by counsel for applicant.
4. The High Court of Kerala in the case of Faizal Abdul Samad
(supra) has held as under:
"9. Thus in Jisha's case, this Court also observed
that even though, the word 'may' is used in Section
143A(1) of NI Act, it will have the impact of 'shall'
since prosecution launched under Section 142 cannot
be identified as scrupulous or unscrupulous ones at the
preliminary stage when the complaint is filed. It was
also observed that the interim compensation
contemplated under Section 143A of the Negotiable
Instruments Act is something meant to be imposed on
all accused irrespective of the amount involved in the
prosecution filed under Section 142 of the NI Act. I
am in perfect agreement with the above dictum laid
down by this Court. But while fixing the interim
compensation, which may be upto 20% of the cheque
amount as per Section 143A(2) of the NI Act., it is the
duty of the learned Magistrate to give reason for fixing
20% of the cheque amount or some amount lesser than
20% of the cheque amount. Therefore, I am of the
considered opinion that the Magistrate shall give
reason while fixing interim compensation under
Section 143A of the NI Act. The Karnataka High
Court considered this point in detail. It will be better
to extract the relevant paragraph of the judgment dated
06.07.2021 in Criminal Petition No.201213 of 2020 of
the High Court of Karnataka, Kalaburagi Bench
[Jahangir S/o. Lalsab Nadaf v. Sri.Farooq Ahmed
Abdul Razak].
"9. Section 143A(1) is not a mandatory
provisions and it says that Court may order the
drawer of the cheque to pay the interim
compensation as per conditions stipulated there
under. So it is evident that the power under
Section 143A is vested with the learned
Magistrate to be exercised judiciously after
recording the plea and it is not mandatory but
the learned magistrate is required to exercise his
judicious discretion under Section 143A of the
Act. But in the present case, the impugned order
disclose that the learned Magistrate has not even
applied his mind and in a mechanical way as per
the mandatory provisions of Section 143A he
has directed the accused to deposit 20% of the
cheque amount. The provisions of Section 143A
are not mandatory but the discretion was given
to the magistrate to be exercised judiciously. In
the instant case though application was filed
prior to the accusation it should be heard only
after the accusation but after giving proper
opportunity. Admittedly the accused/petitioner
herein has submitted his objections to the said
applicants and the learned Magistrate has not
passed any speaking order and in a mechanical
way he directed the accused/petitioner herein to
deposit 20% of the cheque amount. The entire
approach of the learned magistrate is against the
settled principles of natural justice and he did
not even passed a summary speaking order
giving reasons for passing such an order......"
10. The High Court of Jammu & Kashmir and
Ladakh also considered the same issue. It will be
beneficial to extract the paragraphs 10 and 14 in CRM
(M) No.50 of 2020 of the High Court of Jammu &
Kashmir and Ladakh [Nazir Ahmad Chopan v. Abdul
Rehman Chopan].
"10) Although no guidelines for grant of
interim compensation have been laid down in
Section 143-A of the NI Act, yet it is a settled
law that whenever a discretionary power is to be
exercised by a Court, the same has to be
exercised on well-recognized principles
supported by reasons. The court has to spell out
the reasons for grant of interim compensation in
favour of the complainant and it has also to
justify in its order with reasons the quantum of
interim compensation that is being awarded by
him as the said quantum can vary from 1% to
20% of the cheque amount.
xxxxxxxx
14) The question that has not been dealt with
and answered by the learned Magistrate is as to
why the complainant has been awarded interim
compensation @20% of the cheque amount and
not anything less than that. As already noted, a
Magistrate is empowered to grant interim
compensation in favour of a complainant
ranging from 1% to 20% of the cheque amount.
In the instant case, the trial Magistrate has
granted interim compensation in the maximum
range without assigning any reason. The order
impugned is devoid of any reasons and no
discussion is made in the impugned order as to
why interim compensation is being awarded.
The learned Magistrate has not dealt with the
aspect of the matter relating to denial of
execution of the cheque by the accused in his
statement recorded under Section 251 of the Cr.
P. C. Therefore, the said order is not sustainable
in law."
11. I am in full agreement with the decision of the
High Court of Karnataka and High Court of Jammu &
Kashmir and Ladakh, about the reason to be recorded
while ordering compensation under Section 143A of
NI Act. Therefore, I am of the considered opinion that
while fixing the interim compensation under Section
143A of NI Act, the Magistrate shall pass a speaking
order about the reason why such an amount is fixed as
interim compensation. In this case a perusal of
Annexure A6 order would show that it is not a
speaking order. It will be better to extract Annexure
A6 order here:
"Complainant absent represented. Accused
present no representation. NOC from earlier
counsel filed. The accused is directed to pay an
interim compensation of 20% of Rs.28,00,000/-
which is the total amount of 3 cheques in this
case within 60 days from the date of this order."
12. The learned Magistrate directed to pay an
interim compensation of 20% of Rs.28 lakhs which is
the total amount of three cheques. No reason is
mentioned for fixing the maximum amount of 20% of
the cheque amount as interim compensation. In such
circumstances, I am of the considered opinion that the
impugned order is to be set aside and the matter is to
be reconsidered by the learned Magistrate.
Therefore, this Crl.M.C is disposed of in the
following manner:
1. Annexure A6 order is set aside.
2. The Judicial First Class Magistrate Court,
Chottanikkara is directed to reconsider CMP No.1107
of 2022 in ST No.3117 of 2019, in the light of the
principle laid down by this court, as expeditiously as
possible."
5. If the order passed by Judicial Magistrate First Class, Chhindwara
is considered in the light of law laid down by High Court of Kerala in
the case Faizal Abdul Samad (supra), then it is clear that Judicial
Magistrate First Class, Chhindwara has passed a reasoned order for
directing to deposit 20% of the cheque amount as per the mandate of
Section 143-A of Negotiable Instruments Act. From the order it cannot
be said that power has been exercised without any due application of
mind. The only stand which was taken by applicant before the Court
below was that he was carrying a cheque book with signed cheque
leaves which was kept in a bag and the bag was snatched by miscreants.
Why a person would carry blank signed cheque leaves is a mater to be
decided by Trial Court?
6. Once Trial Court was of view that reasons which have been
assigned by applicant are not acceptable and there is a prima facie case
in favour of respondent, then no jurisdictional error was committed by
Trial Court by directing to deposit 20% of the cheque amount as per the
mandate of Section 143-A of Negotiable Instruments Act.
7. Accordingly, the application fails and is hereby dismissed.
(G.S. AHLUWALIA)
JUDGE
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Date: 2024.03.06 17:14:14 +05'30'
