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2023 DIGILAW 2023 (ALL)

Avanish Kumar Gaur v. State of U. P.

2023-08-22

SURENDRA SINGH I

body2023
JUDGMENT Surendra Singh-I, J. The instant petition under Article 227 of the Constitution has been preferred with a prayer to set aside the order dated 24.07.2023 passed by the Sessions Judge, Ghaziabad in Criminal Revision No. 463 of 2023, Avnish Kumar Gaur v. State of U.P. and another as well as order dated 23.05.2023 passed by the Presiding Officer, Additional Court, Court No. 2, Ghaziabad in Complaint Case No. 1179 of 2022, Samleshwar v. Avnish Kumar and others, under section 138 of Negotiable Instruments Act, 1881 (hereinafter referred to as "N.I. Act"), Police Station Sahibabad, District Ghaziabad. 2. Heard Shri Santosh Kumra Dubey, learned counsel for petitioners, Shri Dheeraj Kumar Singh, learned counsel appearing on behalf of opposite party no. 2 and the learned A.G.A. appearing on behalf of the State. 3. As per averments made in the petition, the above mentioned complaint case was filed by respondent no. 2 against the petitioner under section 138 of N.I. Act about dishonouring of cheque. The petitioner was summoned vide order dated 30.11.2021 for trial under Section 138 N.I. Act. The Trial Court vide order dated 23.05.2023 directed the petitioner/accused, under section 143A of the N.I. Act, to pay Rs. 1,70,000/- (20% of the value of cheque) to the complainant as interim compensation within 60 days, subject to the condition mentioned in clause (4) of section 143A of the N.I. Act. 4. A revision has also been filed against the aforesaid order passed by the Trial Court whereby the learned Sessions Judge, Ghaziabad vide order dated 24.07.2023 rejected the criminal revision at the admission stage on the ground that the Magistrate has passed just and proper order under the provisions of section 143A N.I. Act. 5. It has been submitted by the learned counsel for the petitioner that the impugned orders passed by the Trial Court as well as the Revisional Court are wholly illegal and against the provisions of law. It has also been submitted that the Trial Court has passed the order at the initial stage of the proceeding whereas neither statement charge has been recorded against the accused nor any evidence has been adduced by the complainant in the case. 6. Learned counsel for opposite party no. It has also been submitted that the Trial Court has passed the order at the initial stage of the proceeding whereas neither statement charge has been recorded against the accused nor any evidence has been adduced by the complainant in the case. 6. Learned counsel for opposite party no. 2/complainant as well as learned A.G.A. for the State have opposed the petition and submitted that the Trial Court has rightly passed the impugned order as per the provisions of section 143A N.I. Act and, therefore, there is no ground to interfere in the impugned order. 7. Against the dishonoured cheques of total value of Rs. 8,50,000/-, which were allegedly given by accused to the complainant in discharge of a debt, the Trial court vide order dated 23.05.2023 passed under section 143A of N.I. Act had directed the accused/petitioner to pay 20% of this amount i.e. Rs. 1,70,000/- as interim compensation to the complainant. The provisions of section 143A of N.I. Act reads as follows: "143A. Power to direct interim compensation. - (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 percent 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. (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, shall be reduced by the amount paid or recovered as interim compensation under this section." 8. Since word "may" has been used in clause (1) of section 143A of the N.I. Act, thus it is not mandatory on the part of the Trial Court to direct the accused to pay interim compensation to the complainant during pendency of the Trial. Unlike section 148 of N.I. Act which is applicable to appeal filed against the conviction order of the Trial Court passed under Section 138 N.I. Act, under section 143A N.I. Act no minimum amount of interim compensation has been provided. From the impugned order, it is mentioned that the accused had made averments in their objection against application filed under Section 143A that the accused no. 1 Avanish Kumar had paid the cheque amount in installment to the complainant at different dates, namely, 05.11.2020, 06.11.2020, 10.02.2021, 15.02.2021, 02.03.2021, when accused no. 1 asked the complainant to return back the cheque furnished by him to the complainant, he refused to return the cheque and filed the complaint under section 138 of N.I. Act against him. The averments made by complainant has been denied by the accused. The averments made by the complainant and the accused shall be decided on the basis of evidence produced by both parties during trial. The complainant's case is yet to be disposed of. 9. Considering the aforesaid facts and circumstances of the case, the amount imposed by the Trial Court under section 143A of N.I. Act as an interim compensation appears to be unjust and excessive. It would be just and reasonable that the petition be partly allowed and the impugned order dated 23.05.2023 passed by the Presiding Officer, Additional Court, Court No. 2, Ghaziabad be modified to 10% of the value of the cheque i.e. Rs. 85000/- to be paid by the petitioner to the complainant within the stipulated period of 60 days. 10. It would be just and reasonable that the petition be partly allowed and the impugned order dated 23.05.2023 passed by the Presiding Officer, Additional Court, Court No. 2, Ghaziabad be modified to 10% of the value of the cheque i.e. Rs. 85000/- to be paid by the petitioner to the complainant within the stipulated period of 60 days. 10. Accordingly, the impugned order dated 24.07.2023 passed by the Sessions Judge, Ghaziabad in Criminal Revision No. 463 of 2023, Avnish Kumar Gaur v. State of U.P. and another is liable to be quashed and impugned order dated 23.05.2023 passed by the Presiding Officer, Additional Court, Court No. 2, Ghaziabad in Complaint Case No. 1179 of 2022, Samleshwar v. Avnish Kumar and others, under section 138 of N.I. Act, Police Station Sahibabad, District Ghaziabad is liable to be modified as mentioned above. 11. In view of above direction, the aforesaid impugned order passed by the Revisional Court is hereby quashed and the order dated 23.05.2023 passed by the Trial Court concerned is modified to the above extent and the petition is partly allowed. 12. In case the petitioner does not deposit the modified amount of interim compensation of Rs. 85000/- within 60 days as directed above, the Trial Court shall be at liberty to take coercive measure for recovery of that amount in accordance with law, which shall be paid to the complainant as stipulated in the order dated 23.05.2023. 13. It is made clear that anything said in this order are limited to the decision of this writ petition and the Court has not commented on the merit of the case. The Trial Court shall be at liberty to decide the case, on the basis of evidence led, uninfluenced by anything said here and in accordance with law. 14. Let a copy of this order be sent to the Trial Court concerned as well as the Revisional Court.