IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.683 OF 2019 BETWEEN:
P.C. MAMATHA W/O DINESH D.M.
AGED ABOUT 40 YEARS PRESENTLY RESIDING AT PRAID STRING FIELDS APARTMENT ‘E’ BLOCK-511, KANAKAPURA ROAD GUBBALALA VILLAGE SUBRAMANYAPURAM POST BENGALURU-560 078 ... PETITIONER (BY SRI GIRISH B. BALADARE, ADV.,) AND:
SUVARNA M.S. W/O S. PRAKASH AGED ABOUT 41 YEARS R/O MARUVNAHALLI VILLAGE BAGURU HOBLI CHANNARAYAPATNA TALUK HASSAN DISTRICT-573 201 ... RESPONDENT (BY SRI NATARAJU T, ADV.,) THIS PETITION IS FILED UNDER SECTION 482 CR.P.C. PRAYING TO SET ASIDE THE ORDER DATED 27.12.2018 VIDE ANNEXURE-A PASSED BY THE LEARNED CIVIL JUDGE AND JMFC AT CHANNARYAPATNA IN C.C.NO.1400/2017 WITH RESPECT TO THE CONDITION THAT THE ACCUSED/PETITIONER IS DIRECTED TO DEPOSIT 20% OF THE CHEQUE AMOUNT AS AN INTERIM COMPENSATION TO THE COMPLAINANT AS PER SECTION 143A OF N.I. ACT.
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Though this matter is listed in the orders list, it is taken up for final disposal, by consent of learned advocates appearing for the parties.
2. The short point that arises for consideration in this petition is:
“Whether the learned trial Judge could have directed the accused to pay 20% of the cheque amount as an interim compensation to the complainant as per Section 143A of the Negotiable Instruments Act, 1881 by the impugned order dated 27.12.2018 – Annexure ‘A’?”
3. Respondent herein has filed a complaint under Section 200 Cr.P.C., read with Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’ for short) contending inter alia that accused- petitioner for discharge of debt had issued a cheque for a sum of Rs.50 lakhs and said cheque when presented through her Bank has been returned unpaid with an endorsement ‘funds insufficient’ and as such, she got issued a statutory notice and despite demand made thereunder, accused-petitioner had not re-paid the amount and thereby has committed an offence punishable under Section 138 of the Act.
4. Learned trial judge after having registered the complaint, issued summons to the accused, who did not appear despite service of notice and as such non- bailable warrant came to be issued on 25.09.2018 and thereafter petitioner was enlarged on bail by order dated 27.12.2018. However, plea of the accused has not been recorded as could be seen from the order sheet of the trial court at Annexure ‘A’. Simultaneously, while passing the order on bail application, the learned trial Judge has directed the accused to deposit 20% of the cheque amount as interim compensation to the complainant in the teeth of Section 143A of the Act. Assailing the said order, petitioner is before this Court.
5. It is the contention of Sri Girish B. Baladare, learned counsel appearing for the petitioner that Section 143-A having come into force by Act (20 of 2018) w.e.f. 02.08.2018, benefit flowing from said penal provision could not have been extended to the complainant herein, since complaint in question was filed prior to the said amendment coming into force i.e., on 4.10.2017. He would also submit that since plea of the accused has not been recorded, Section 143A could not have been invoked to direct the petitioner-accused to deposit 20% of the cheque amount.
6. Per contra, Shri T.Nataraju, learned counsel appearing for the respondent-complainant supports the impugned order and prays for dismissal of the petition.
7. Having heard the learned counsel appearing for the petitioner and on perusal of records, it would clearly emerge from the complaint in question, same was presented on 4.10.2017. However, accused though served with suit summons did not appear and as such non-bailable warrant came to be issued on 25.9.2018 and subsequently by order dated 27.12.2018 after having secured the petitioner-accused by duly executing the non-bailable warrant issued was produced before the Court on 19.12.2018 and remanded to judicial custody till 20.12.2018 and on the said date i.e., on 20.12.2018, accused was enlarged on bail. As could be seen from the order sheet, plea of the accused was not recorded on 20.12.2018. When the matter came to be adjourned to 27.12.2018, accused offered the surety affidavit and it came to be accepted and yet even on the said date, the learned trial Judge did not record the plea of the accused. Neither accused has filed an application under Section 145 of the Act nor has sought leave of the Court to cross-examine the witness. This being the factual matrix, learned trial Judge by impugned order has directed petitioner-accused to deposit 20% of the cheque amount by exercising power under Section 143A of the Act. Said provision reads as under:
“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.”
8. It is not in dispute that the said Section came to be inserted by amendment Act (20 of 2018). Said Act though amended with effect from 02.08.2018 it has come into force with effect from 02.09.2018 in as much as Sub Section(2) of the Amendment Act clearly specifies or indicates that Amendment would come into force from the appointed date. The Central Government by issuance of notification dated 02.09.2018 has appointed the date as 02.09.2018 from which date Amendment Act (20 of 2018) came into force. For invoking Section 143A necessary ingredients to be satisfied would be that accused should plead not guilty to the accusation made in the complaint and only then Magistrate would get jurisdiction to direct the accused to pay compensation as prescribed under Sub Section (1) of Section 143A. For invoking said provision namely for invoking sub section (1) of Section 143A to direct the drawer-accused of the cheque to pay interim compensation to the complainant following ingredients will have to be satisfied by the complainant i.e., a) Where the accused pleads not guilty to the accusation made in the complaint, in a summary trial or a summons case, b) upon framing of charge in any other case.
Thus, cause of action to direct the drawer of the cheque to pay the interim compensation to the complainant would arise only in the event of the accused not pleading guilty, if this incident or event has not taken place, then invoking of said provision would not arise.
9. The date of filing of the complaint would have no bearing and in the event of complaint having been filed prior to Act (20 of 2018) having come into force and before the appointed date i.e. 02.09.2018, accused has appeared and pleaded not guilty, penal provision of Section 143A cannot be made applicable retrospectively. However, if the complaint has been filed prior to Act (20 of 2018) came into force i.e. prior to appointed date 02.09.2018 and in the contingency of accused having not been served with summons or accused has not appeared despite service of summons or the accused was not secured through issuance of Non Bailable Warrant or accused is absconding and the fact that plea of accused has not been recorded, in such an event, even if the complaint is filed prior to Amendment Act coming into force and thereafter i.e. subsequent to appointed date 02.09.2018 accused had appeared before the Court and pleads not guilty, definitely sub section (1) of 143A can be invoked and as such, first contention raised by Sri.Girish B.Baladare in this regard, cannot be accepted. Accordingly, it stands rejected.
10. In so far as second contention is concerned, even before the plea of the accused came to be recorded, impugned order came to be passed merits acceptance or consideration, in as much as impugned order itself discloses as already observed herein above neither accused had filed an application under Section 142 of the Act nor had pleaded guilty to the accusation made by the complainant in the complaint against her. In other words, cause of action had not arisen and it was only in the event of contingencies prescribed under clause (a) and (b) of sub section (1) of Section 143A occurring trial Court would get jurisdiction to direct the drawer of cheque to pay interim compensation upto 20% of the cheque amount to the complainant and not otherwise. Hence, second contention raised by Sri.Girish B.Baladare, deserves to be accepted.
For the reasons stated hereinabove, I proceed to pass the following:
ORDER 1. Criminal petition is allowed.
2. Impugned order dated 27.12.2018 in so far as directing petitioner-accused to deposit 20% of the cheque amount to the complainant as interim compensation as per Section 143A is hereby set aside.
3. However it is made clear that learned Magistrate would be at liberty to pass appropriate orders under Section 143A keeping in mind the observations made herein above.
SD/- JUDGE cp/UN