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2019 DIGILAW 489 (KER)

Jisha, W/o. Praveen v. State of Kerala

2019-06-25

MARY JOSEPH

body2019
ORDER : This petition is filed under Section 482 Cr.P.C, seeking to quash an order passed by the Judicial First Class Magistrate Court I, Muvattupuzha on 8.3.2019 in C.M.P.No.316/2019 in S.T.No.3531/2018, a copy of which is produced alongwith as Annexure A4. C.M.P.No.316/2019 is a petition filed by the complainant under Section 143A of the Negotiable Instruments Act, 1881 (for short 'the N.I Act'). S.T.No.3531/2018 is a prosecution launched by the 2nd respondent herein against the petitioner under Section 142 N.I Act alleging commission of offence punishable under Section 138 N.I Act. The complaint was launched in the year 2018. Annexure A4 order was passed, when the plea of the accused that he is not guilty of the offence was recorded by the court. The accused was directed to pay a sum of Rs.1,00,000/- as interim compensation to the complainant within 60 days from the date of the order (20% of Rs.5,00,000/-, the cheque amount). It is aggrieved by the said order, the accused has approached this Court in the captioned petition. 2. Sri.S.Sreedev advanced arguments on four points. The first and foremost argument of the learned counsel was centered on the second part of Article 20 (1) of the Constitution of India. The counsel has drawn this Court's attention to Article 20(1) of the Constitution of India to contend that a person shall not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence by him. It is contended by the learned counsel that the direction of the court below to pay interim compensation amounts to penalty and therefore is hit by Article 20(1) of the Constitution. 3. Secondly it was contended by the learned counsel that Section 143A N.I Act can be invoked only against the drawer of the cheque. The learned counsel has invited this Court's attention to Section 7 N.I Act to contend that drawer means the maker of bill of exchange or cheque. According to him, the accused in the case on hand cannot be said to be a drawer of the cheque, since the issuance and execution of the cheque have been denied by him. Thirdly, the argument advanced was that eventhough the accused has filed objection to Crl.M.A. No.316/2019 before the court below, the contentions raised therein were not dealt with by the court in the impugned order. Thirdly, the argument advanced was that eventhough the accused has filed objection to Crl.M.A. No.316/2019 before the court below, the contentions raised therein were not dealt with by the court in the impugned order. The contention fourthly raised was that the complainant has already obtained an order of attachment of immovable property of the accused from a civil court and therefore he cannot be directed to pay the interim compensation under Section 143A N.I Act. The learned counsel for the respondent Sri.Peeus Kottam has contended that none of the arguments advanced by the learned counsel for the petitioner is tenable. According to him what is directed to be paid by the impugned order is interim compensation and that cannot be treated at par with penalty. It is contended by the counsel that Section 143A of the Act does not contemplate filing of objection by the accused. Therefore, the court below is not bound to deal with the objections raised in the counter filed by the petitioner. It is also contended by the learned counsel that the order of attachment of immovable property, that stands in favour of the complainant will not takes away the power of the court to grant the interim relief by invoking jurisdiction under Section 143A N.I Act. 4. In the backdrop of the rival contentions raised, this Court ventured to analyse the provisions, to which the attention of this Court is invited. Article 20 of the Constitution of India is extracted hereunder, being relevant in the context: “ Protection in respect of conviction for offences- (1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. (2) No person shall be prosecuted and punished for the same offence more than once. (3) No person accused of any offence shall be compelled to be a witness against himself.” 5. The caption of Article 20 is to the following effect: “Protection in respect of conviction for offences”. From the caption of the Article itself, it is discerned that the provision is intended to grant protection to a person in respect of conviction for offences. The caption of Article 20 is to the following effect: “Protection in respect of conviction for offences”. From the caption of the Article itself, it is discerned that the provision is intended to grant protection to a person in respect of conviction for offences. What is contemplated under Article 20 was that a person shall not be convicted of any offence except for violation of a law in force at the time of commission of an offence for which he was charge-sheeted. What is intended by the makers while incorporating Article 20 into Constitution of India was that a person shall not be convicted for an accusation, which is not an offence at the relevant time of commission of the offence. Therefore the first part of Article 20 has no relevance in the context. When coming to the second part on which the argument has been advanced by the learned counsel for the petitioner, a person shall not be subjected to penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. The learned counsel for the petitioner has attempted to apprise this Court that what is contemplated under Section 143A N.I. Act is penalty. The attempt of the learned counsel was that, when Section 143A N.I Act directs the accused to pay 20% of the amount covered by the cheque and that was imposed by the order under challenge at a time when the accused was not tried and found guilty, it partakes the character of penalty and the direction to pay a portion of the amount covered by the cheque is absolutely illegal in view of second part of Article 20 of the Constitution of India. Bearing the argument in mind, this Court had gone through Section 143A, which has been newly introduced into the N.I Act by way of Amendment by Act 20 of 2018. It is relevant to notice that the provision has been incorporated into the N.I Act with effect from 1.9.2018. The provision is extracted hereunder: 143A. Bearing the argument in mind, this Court had gone through Section 143A, which has been newly introduced into the N.I Act by way of Amendment by Act 20 of 2018. It is relevant to notice that the provision has been incorporated into the N.I Act with effect from 1.9.2018. The provision is extracted hereunder: 143A. 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) 6. (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) 6. As per the provision, the trial court dealing with the prosecution under Section 138 N.I Act may order the drawer of the cheque to pay interim compensation to the complainant at two stages as contemplated therein, which have been stated hereunder : (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. It is also provided under sub-section (6) of the provision that 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 to or received as interim compensation under this section. It is pertinent to note that the provision is directed to be invoked at a stage when the accusation raised against the accused are read over to him and when he pleads not guilty to those. Therefore in a circumstance where the accusations have been read over to the accused and only when he pleads not guilty that the power under Section 143A can be invoked by the trial court. The crucial time for invocation of jurisdiction under Section 143A of the Act is the time at which the accusation is read over to the accused and he pleads not guilty to those. The words 'where he pleads not guilty', itself indicate that the interim compensation has been ordered under the provision, not as a penalty. Penalty involves an element, which is penal in nature, whereas compensation will only works out as a consolation to the complainant aggrieved by the bouncing of the cheque. For imposing or for directing the accused to pay interim compensation, the trial court need not have ventured to establish the guilt or non guilt of the accused of the offence alleged against him. Only when he pleads not guilty to the offence that the trial court is empowered to invoke the jurisdiction under Section 143A N.I Act. For imposing or for directing the accused to pay interim compensation, the trial court need not have ventured to establish the guilt or non guilt of the accused of the offence alleged against him. Only when he pleads not guilty to the offence that the trial court is empowered to invoke the jurisdiction under Section 143A N.I Act. The position secured by sub-section (6), wherein adjustment of the interim compensation from the fine amount imposed under Section 138 N.I. Act or from the amount of compensation awarded under Section 357 Cr.P.C, also indicates that the amount directed to be paid is not a penalty. For reasons stated above, the argument of the learned counsel that the direction to pay compensation is violative of the second part of Article 20(1) of the Constitution of India is devoid of merits and is discarded. 7. It is indicative on a reading of Section 143A which has been newly introduced into the N.I Act that the Court trying an offence under section 138 shall suo motu exercise the power. There is no need for an application to be filed by the complainant in that regard. Likewise, the section also does not provide for an opportunity, for the accused to be heard. Nowhere under Section 143A N.I. Act, it is provided that prior to passing of an order directing payment of interim compensation, the accused needs to be granted an opportunity of being heard. Eventhough the word 'may' is in use in the provision, it will have the impact of 'shall' since prosecutions launched under Section 142 cannot be identified as scrupulous or unscrupulous ones at the preliminary stage when complaint is filed. Interim compensation contemplated under Section 143A N.I. Act is something meant to be imposed on all accused irrespective of the amount involved in the prosecution filed under Section 142 N.I Act. Therefore, the argument of the learned counsel that the objection filed by him to the application under Section 143A N.I. Act was not considered by the court is of not that much relevance. 8. Going by the definition of 'drawer' under the N.I Act, it is found that the maker of a bill of exchange or cheque is called a drawer. 8. Going by the definition of 'drawer' under the N.I Act, it is found that the maker of a bill of exchange or cheque is called a drawer. It is contended by the learned counsel that the issuance and execution of the cheque are denied by the accused and therefore, the accused in the case on hand cannot be termed as the maker of a cheque. The answer to the contention is contained in Section 143A itself. It is stated therein that the power under Section 143A can be invoked at a time when the accused pleads not guilty to the offence alleged against him. In a prosecution under Section 142, the offence alleged against the accused is under Section 138 N.I Act. The prosecution under Section 138 N.I Act contemplates establishment of execution of the cheque by the complainant. When the accused denies the execution of the cheque, that may takes in itself, the denial of issuance of cheque, denial of affixture of signature therein and denial of the transaction which caused the issuance of the same. When he pleads not guilty, the said plea will takes in all these aspects. Therefore, the argument of the learned counsel for the accused that being not a maker of the cheque in question, he shall not be ordered by the Court to pay interim compensation as contemplated under Section 143A N.I. Act, is not liable to be accepted and therefore, is repelled. The argument raised fourthly was that in view of the order of attachment of the immovable property of the accused passed by the Civil Court, the copy of which order is produced alongwith this petition as Annexure A4, the interim compensation is not liable to be imposed on him. 9. Going by Annexure A1 it is seen that it is an order of attachment passed before judgment, in favour of the complainant, who was a plaintiff in a suit pending before a civil court. Therefore, the order of attachment will only act as security for realisation of money when ultimately a decree is passed against the defendant in the civil case. Only when a decree is passed in favour of the plaintiff in the civil suit, the attachment order will be enforcible. That has no relevance when the power under Section 143A is invoked by the trial court in a case under Section 138 N.I. Act. Only when a decree is passed in favour of the plaintiff in the civil suit, the attachment order will be enforcible. That has no relevance when the power under Section 143A is invoked by the trial court in a case under Section 138 N.I. Act. Section 143A is an independent and self contained provision. Therefore, the argument of the learned counsel that the trial court ought not to have passed an order under Section 143A, when an attachment order is obtained by the complainant against the accused from a Civil Court will not sustain. Moreover, in case the prosecution under Section 142 N.I Act turns unsuccessful, sub-section (4) of Section 143A N.I Act provides for repayment of the interim compensation alongwith interest at the rate specified therein. For the reasons that argument is also repelled. 10. Going by the order under challenge, it is noticed that the order has been passed by the court invoking power under Section 143A N.I. Act. It has been passed at a stage when the plea of the accused was recorded. In the case on hand, the complainant has approached the court by filing a petition under Section 143A N.I. Act. But on a reading of the provision it is clear that for invoking the power under the provision, an application need not be filed by the complainant. The power can be exercised by the court in seizin of the prosecution suo motu at the relevant time when a plea that the accused is not guilty of the offence alleged against him is raised by him. There is no need for the complainant to apply for getting the relief of the nature as contemplated by the provision. In the case on hand, it is evident from the impugned order that an application was filed by the complainant under Section 143A N.I. Act and the power was exercised by the Court at the right point of time when the plea of the accused on guilt was recorded. Therefore, the challenge of the order for the reason that the power under Section 143A was invoked incorrectly by the court will not sustain. By the impugned order the accused was directed to pay 20% of the cheque amount as interim compensation within a period of 60 days from the date of the order. Therefore, the challenge of the order for the reason that the power under Section 143A was invoked incorrectly by the court will not sustain. By the impugned order the accused was directed to pay 20% of the cheque amount as interim compensation within a period of 60 days from the date of the order. This Court do not find anything unreasonable or illegal in the direction imposed by the impugned order. In view the above discussion, the order under challenge is liable to be confirmed. In the result, the Crl.M.C stands dismissed. Since the time granted by the court to pay the interim compensation is already expired, this Court is inclined to grant some time for making the deposit. The petitioner shall pay the amount as directed by the Court to the complainant on or before 09.08.2019.