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2021 DIGILAW 175 (BOM)

Fxp Fincon Pvt. Ltd. (opc) v. Peter Fernandes

2021-01-27

M.S.JAWALKAR

body2021
JUDGMENT M. S. Jawalkar, J. - At the request of and by consent of the learned Counsel for the parties, this Criminal Writ Petition is being disposed off. 2. The present Writ Petition is filed by the petitioners, challenging the order dated 12.11.2019, passed by learned Judicial Magistrate First Class, Mapusa in Case No. OA/496/NIA/2018/B. 3. It is submitted by Mr. C.A. Ferreira, the learned Counsel for the petitioners that respondent no. 1 had deposited the cheque in HDFC Bank, which was returned alongwith return memo with remark "Account Blocked". The respondent no. 1 issued notice to the petitioners. However, the said notice was not received by the petitioners as it was sent to an address, which the petitioners had already left, approximately an year ago. The respondent no. 1 filed complaint bearing Case No. OA/496/NIA/2018/B in the Court of the Judicial Magistrate First Class at Mapusa. The respondent no. 1 in the month of February, 2019 filed an application under Section 143-A of the Negotiable Instruments Act, 1881. The petitioners filed an application for interim compensation. The learned JMFC passed an order directing the petitioners to deposit 20% of the cheque amount. 4. It is submitted by the learned Counsel for the petitioners that the order is passed without considering Section 143-A of the Negotiable Instruments Act. It is submitted that there is neither any reason nor a stage of directing to pay such interim compensation. It is submitted that the reply filed by the petitioners herein was also not considered by the learned JMFC. It is submitted that the said direction can be issued only when the accused pleads not guilty to the accusation made in the complaint and in any other case, upon framing charge. It is submitted that the order passed is premature and no stage for such direction had occurred. 5. As against this, Mr. Joaquim Godinho, the learned Counsel for respondent no. 1 submitted that in view of reply to the application, there is denial to pay the amount, which itself can be sufficient to invoke Section 143-A of the Negotiable Instruments Act. 6. I have heard Mr. C. A. Ferreira, the learned Counsel for the petitioners and Mr. J. Godinho, the learned Counsel for respondent no. 1. Respondent no. 2-State is a formal party. 7. 6. I have heard Mr. C. A. Ferreira, the learned Counsel for the petitioners and Mr. J. Godinho, the learned Counsel for respondent no. 1. Respondent no. 2-State is a formal party. 7. The reason given by the learned JMFC for directing deposit of 20% of the cheque amount is that the offence having been completed by 2018. Besides this, there is no other reason given for such direction of deposit of 20% of the cheque amount by the petitioners. It appears that the learned JMFC failed to consider the reply filed by the accused as well as the provisions under which the application is made. 8. Section 143-A of the Negotiable Instruments Act is inserted by Act 20 of 2018, which reads as under: "143-A. Power to direct interim protection - (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." 9. In view of this provision, such direction to deposit 20% of the cheque amount can be given to the accused only where the accused pleads not guilty to the accusation made in the complaint and in any other case, upon framing of charge. In my considered opinion, this provision is not taken into account by the learned JMFC. Thus, the order dated 12.11.2019 passed by the learned JMFC is liable to be quashed and set aside. 10. Accordingly, I proceed to pass the following order: O R D E R (i) The Petition is allowed. (ii) The impugned order dated 12.11.2019 passed by the Judicial Magistrate First Class, Mapusa in OA/496/NIA/18/B is hereby quashed and set aside. (iii) The respondent is at liberty to file application under Section 143-A of the Negotiable Instruments Act, 1881, if he so desires. (iv) No order as to costs.