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TMI Blog2021 (8) TMI 249X X X X Extracts X X X X X X X X Extracts X X X X ..... e before this Court. The petitioner No. 1 has signed the cheques in question as an authorised signatory of accused No. 1 Company. The petitioners are Directors of accused No. 1 Company. The contention taken before this Court was not taken before the trial Court by the petitioners. On the contrary, it was requested before the trial Court that minimum amount may be ordered to be deposited and not 20% of the cheque amount. Further, though the trial Court directed the accused to pay 20% of the cheque amount by way of interim compensation within 60 days from the date of order i.e. from 19.09.2019, till date, the said direction has not been complied with. This Court is not inclined to exercise powers under Article 226 of the Constitution of India in favour of the present petitioners - Petition dismissed. - R/Special Criminal Application No. 6258 of 2021 - - - Dated:- 26-7-2021 - V. M. Pancholi , J. For the Appellant : Aditya A. Gupta, Mohit A. Gupta and A.R. Gupta For the Respondents : L.B. Dabhi, APP JUDGMENT V. M. Pancholi , J. 1. This petition is filed under Article 226 of the Constitution of India, in which, the petitioners have challenged the order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nded that as the present petitioners are not the drawer of the cheque and the cheque in question is issued from the account maintained by original accused No. 1 Company, the petitioners are not liable to pay interim compensation as provided under Section 143A of the N.I. Act. It is, therefore, urged that the impugned order be quashed and set aside. 4. On the other hand, learned Additional Public Prosecutor has opposed this petition and referred the impugned order passed by the Magistrate Court. Learned Additional Public Prosecutor thereafter taken this Court through copies of the cheques which are placed on record and pointed out that on behalf of original accused No. 1 Company, present petitioner No. 1 has signed the cheque as authorised signatory. It is further submitted that the impugned order that is sought to be challenged by the petitioners in the present petition was passed by the Magistrate Court way back in the year September, 2019. Thus, there is a delay of approximately two years and the petitioners have not explained the said delay. It is also contended that though the direction was issued to the accused to pay 20% of the cheque amount in September, 2019, it appears ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exceed 20% of the cheque amount and, therefore, minimum amount may be ordered to be deposited. Thus, it appears that the petitioners have accepted their liability of making payment of interim compensation. It is therefore clear from the record that the contention taken by the petitioners that the petitioners are not the drawer of the cheques in question is nothing but an afterthought and the said contention is taken for the first time before this Court. 8. Keeping in view the aforesaid factual aspect, now, the contentions taken by the learned advocate for the petitioners are required to be examined. Section 143A of the N.I. Act provides 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 amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cused neither responded to the notice nor made the payment and, therefore, the complaint was filed by the respondent - complainant against the appellant - accused. It is further revealed that the complaint under Section 138 of the N.I. Act was filed against the appellant accused only and during the course of trial, an application under Section 319 of the Code of Criminal Procedure, 1973 ( the Code for short) came to be filed before the trial Court with a request to implead Dakshin as an accused. The concerned Magistrate allowed the said application, against which, the appellant - accused filed Revision Application before the Madras High Court. The said Revision Application was also dismissed and, therefore, Special Leave Petition was preferred before the Honourable Supreme Court. It is further revealed that the cheque was drawn on account of Dakshin by somebody who claims to be the Director of Dakshin. It is the case of the respondent - complainant that the cheque was signed by the appellant - accused. Therefore, there was some dispute regarding identity of the person who signed the cheque. It was argued before the Honourable Supreme Court by the learned counsel appearing for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of trial. Thus, from the aforesaid observations made by the Honourable Supreme Court in Paragraph-22, it can be said that if the Company is not joined as an accused at the time of filing of the complaint under Section 138 of the N.I. Act and subsequently, the Company is sought to be summoned for being tried under Section 138 of the N.I. Act beyond the period of limitation prescribed under the Act, the authorised signatory/Director cannot be told that he can make no grievance of that fact on the ground that Company did not make any grievance of such summoning. As observed hereinabove, in the present case, respondent No. 2, complainant herein has joined the Company as accused No. 1. 11. The Honourable Supreme Court has thereafter, observed in Paragraphs-27 and 28 as under: 27. By the nature of the offence under Section 138 of the Act, the first ingredient constituting the offence is the fact that a person drew a cheque. The identity of the drawer of the cheque is necessarily required to be known to the complainant (payee) and needs investigation and would not normally be in dispute unless the person who is alleged to have drawn a cheque disputes that very fact. The ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court. It is not in dispute that till today, Bombay High Court has not taken any final decision after passing of the order dated 26.10.2020. Thus, this Court is of the view that the ex-parte interim order passed by the Bombay High Court would not render any assistance to the petitioners. 14. Now, if the facts of the present case as discussed hereinabove are carefully seen, it is clear that petitioner No. 1 has signed the cheques in question as an authorised signatory of accused No. 1 Company. The petitioners are Directors of accused No. 1 Company. The contention taken before this Court was not taken before the trial Court by the petitioners. On the contrary, it was requested before the trial Court that minimum amount may be ordered to be deposited and not 20% of the cheque amount. Further, though the trial Court directed the accused to pay 20% of the cheque amount by way of interim compensation within 60 days from the date of order i.e. from 19.09.2019, till date, the said direction has not been complied with. 15. In view of the aforesaid discussion, this Court is not inclined to exercise powers under Article 226 of the Constitution of India in favour of the present peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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