Court No. - 72
Case :- APPLICATION U/S 482 No. - 30517 of 2019 Applicant :- Sahab Khan Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Rajesh Kumar Mishra,Amir Khan Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Joshi,J.
Heard Shri Rajesh Kumar Mishra, learned counsel for the applicant and learned A.G.A. for the State.
The application under Section 482, Cr.P.C. has been filed for quashing the impugned order dated 8.7.2019 passed by the Additional Chief Judicial Magistrate, Khurja, Bulandshahar in complaint case No.203 of 2017 (Ajanta Motor Finance Vs. Sahab Khan), under Section 138, N.I. Act, whereby condition No.3 was imposed while granting bail to the accused-applicant to deposit 20% of the cheque amount i.e. Rs.1,25,000/- through demand draft by way of interim compensation.
The relevant fact for deciding the present case is that the complainant-O.P. No.2 filed a complaint on 31.3.2017 under Section 138 of N.I. Act against the accused-applicant for dishonouring of the cheque amounting to Rs.6,25,000/-. The magistrate vide order dated 17.7.2017 summoned the accused- applicant for facing the trial. Subsequently, the Application U/S 482 No.41525 of 2017 was filed by the applicant for quashing the summoning order as well as entire criminal proceedings of the complaint case. This Court vide order dated 23.5.2019 refused the prayer for quashing the entire proceedings of the case and directed the applicant to appear and surrender before the court concerned and apply for bail and his prayer for bail shall be considered and decided in accordance with law. Subsequently, the applicant applied for grant of bail before the magistrate concerned in which the bail was granted to the applicant during the pendency of the case on certain conditions. One of the condition No.3 is impugned in the present application, whereby the applicant was directed to pay 20% of the cheque amount as an interim compensation.
The contention of learned counsel for the applicant is that the condition for interim compensation cannot be imposed while granting bail to the accused-applicant as the provisions for grant of interim compensation was inserted by way of Section 143A of the N.I. Act by Act No.20 of 2018 w.e.f. 1.9.2018 and the complaint in question was filed on 31.3.2017 and the said provisions are prospective in nature and not retrospective. In support of his contention learned counsel for the applicant relied upon the judgment of the Apex Court in Criminal Appeal No.1160 of 2019, G.J. Raja Vs. Tejraj Surana dated 30.7.2019.
On the other hand learned A.G.A. submits that admittedly the complaint was filed prior to the insertion of provisions of Section 143A of N.I. Act, therefore, judgment of the Apex Court is applicable in the present case.
I have considered the submissions so raised by the parties and perused the record. From the record it is apparent that the complaint case No.203 of 2017 was filed on 31.3.2017 against the applicant for dishonouring of cheque amounting to Rs.6,25,000/-.
Section 143A of the N.I. Act was inserted by Act No.20 of 2018 with effect from 1.9.2018. The inserted section 143A of the N.I. Act is quoted 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 years, 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."
A reading of Section 143A shows (i) interim compensation must not exceed 20% of the amount of the cheque; (ii) it must be paid within the time stipulated under Sub-Section (3); (iii) if the accused is acquitted, the complainant shall be directed to pay to the accused the amount of interim compensation with interest at the bank rate; (iv) the interim compensation payable under said Section can be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973 ('the Code', for short); and (v) if the accused were to be convicted, the amount of fine to be imposed under Section 138 of the Act or the amount of compensation to be awarded under Section 357 of the Code would stand reduced by the amount paid or recovered as interim compensation.
The Magistrate while imposing the third condition vide impugned order dated 8.7.2019 has directed the applicant to make the payment to the extent of 20% of the cheque amount as interim compensation.
In a recent judgment in Criminal Appeal No.1160 of 2019, G.J. Raja Vs. Tejraj Surana, the Apex Court has held the applicability of Section 143A of N.I. Act to be prospective in nature and confined to the cases where offences are committed after introduction of Section 143A of N.I. Act. The relevant paragraph Nos.23 and 24 of the said judgment are quoted as under:
"23. We must, however, advert to a decision of this Court in Surinder Singh Deswal and Ors. vs. Virender Gandhi where Section 148 of the Act which was also introduced by the same Amendment Act 20 of 2018 from 01.09.2018 was held by this Court to be retrospective in operation. As against Section 143A of the Act which applies at the trial stage that is even before the pronouncement of guilt or order of conviction, Section 148 of the Act applies at the appellate stage where the accused is already found guilty of the offence under Section 138 of the Act. It may be stated that there is no provision in Section 148 of the Act which is similar to Sub-Section (5) of Section 143A of the Act. However, as a matter of fact, no such provision akin to sub-section (5) of Section 143A was required as Sections 421 and 357 of the Code, which apply post-conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act. Therefore, the decision of this Court in Surinder Singh Deswal stands on a different footing.
24. In the ultimate analysis, we hold Section 143A to be prospective in operation and that the provisions of said Section 143A can be applied or invoked only in cases where the offence under Section 138 of the Act was committed after the introduction of said Section 143A in the statute book. Consequently, the orders passed by the Trial Court as well as the High Court are required to be set aside. The money deposited by the Appellant, pursuant to the interim direction passed by this Court, shall be returned to the Appellant along with interest accrued thereon within two weeks from the date of this order."
In view of the decision in G.J. Raja case (supra), third condition imposed by the magistrate for payment of 20% of the cheque amount is not legally sustainable and the applicant cannot be directed to pay interim compensation to the extent of 20% of the cheque amount as the provisions of Section 143A of the N.I. Act are not at all attracted since the complaint was filed on 31.3.2017.
The application stands allowed. The condition no.3 so imposed vide impugned order dated 8.7.2019 passed by the Additional Chief Judicial Magistrate, Khurja, Bulandshahar in the aforesaid case is, hereby, quashed.
Order Date :- 26.8.2019 T. Sinha