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2023 DIGILAW 764 (RAJ)

Dilip Singh v. State of Rajasthan

2023-04-04

MANOJ KUMAR GARG

body2023
ORDER : 1. The present misc. petition has been filed by the petitioner against the order dated 16.8.2022 passed by learned Sessions Judge, Jodhpur district in Criminal Revision No. 31/2022 whereby, the learned Judge rejected the revision petition and upheld the order dated 28.10.2021 granting interim compensation to the complainant. 2. Brief facts of the case are that the complainant respondent no. 2 filed a complaint before the learned Judicial Magistrate, Osiyan for offence under section 138 of Negotiable Instruments Act against the petitioner. After preliminary hearing of the complaint, the learned trial court vide order dated 28.10.2021 directed the petitioner to pay 20% of the cheque amount to the complainant as interim compensation, within a period of one month. Feeling aggrieved by the order dated 28.10.2021, the petitioner preferred a revision petition before the learned Sessions Judge, Jodhpur District, which too came to be dismissed vide order dated 16.08.2022. 3. Learned counsel for the petitioner submits that the trial court passed an order to pay 20% of the cheque amount without giving him an opportunity of hearing and to file objections. It is argued that the learned trial court has passed the order to pay interim compensation without applying mind and without giving cogent reasons. It is submitted that the complainant did not prefer any application seeking any interim compensation and the learned trial court suo motu granted compensation, therefore, the impugned order is liable to be quashed and set aside. The revision court also did not consider these material aspects of the matter and dismissed the revision petition of the petitioner. He placed reliance on the judgment of Karnataka High Court in the case of Smt. Vijaya v. Shekhappa (Criminal Petition No. 100261/2022) dated 17.02.2022 and order dated 26.05.2022 passed in the case of Himanshu Gupta v. V. Narayana Reddy (Criminal Petition No. 3555/2022). 4. Per contra, learned counsel for the respondent supported the impugned orders and submitted that the court below has rightly passed the order granting interim maintenance as per Section 143A of the Act as discretion is available to the learned Magistrate to award interim maintenance upto 20% of the cheque amount, which does not called for any interference. 5. Heard the learned counsel for the parties and perused the orders impugned. 6. 5. Heard the learned counsel for the parties and perused the orders impugned. 6. It is not disputed that Sub-section (1) of the Section 143A of the Act provides that notwithstanding anything contained in the Cr.P.C the Court trying an offence under Section 138 may order drawer to pay interim compensation to the complainant. It is the discretion conferred, as the word used is “may.” Further, discretion available to the Magistrate is that the amount to be granted should not exceed 20%. In the present case, the learned Magistrate and revisional court has passed the order for payment of interim compensation only on the ground that the accused has pleaded not guilty without recording detailed reasons as to why 20% of the cheque amount is being awarded as interim compensation. In the opinion of this Court, when the accused does not plead guilty, he automatically does not become liable to pay 20% as interim compensation. The Court has to record reasons for determining the quantum of compensation, if it comes to the conclusion that it is a case which deserves award of interim compensation, anywhere upto 20% of the cheque amount. Moreover, the impugned order has been passed without hearing the accused petitioner on the point of grant of interim maintenance. Sub-section (5) of Section 143A of the Act mandates that 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. Thus, in the event the accused failed to comply with the order of deposit of 20% of the cheque amount, it is likely to result into a proceeding under Section 421 of Cr.P.C. It is settled law that any order both judicial and administrative, having penal or civil consequences, cannot be passed without complying with principles of natural justice. 7. In view of above, the present misc. petition is partly allowed. The impugned orders dated 28.10.2021 passed by learned Judicial Magistrate, Osiyan, District Jodhpur and order dated 16.08.2022 passed by learned Sessions Judge, Jodhpur District are hereby quashed and set aside and the matter is remanded to the Judicial Magistrate, Osiyan, District Jodhpur to pass a fresh reasoned order, after granting an opportunity of hearing to the parties. 8. Stay application is also disposed of.