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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 ..... t after filing of the said complaint, the concerned Magistrate Court has issued the process against the present petitioners vide order dated 02.09.2018. Respondent No. 2 complainant thereafter filed an application Exh.13 under Section 143A of the N.I. Act and requested that the accused be directed to deposit 20% of the cheque amount by way of interim compensation. It is submitted that by way of interim order dated 19.09.2019, the concerned Magistrate Court directed the accused to pay 20% of the cheque amount to the complainant within the stipulated period towards compensation as provided in the amended Section 143A of the N.I. Act. The petitioners have, therefore, filed the present petition. 3.1. Learned advocate Mr. Aditya A. Gupta mainly contended that the present petitioners are not the drawer of the cheque and as per Section 143A of the N.I. Act, liability is on the drawer of the cheque to pay the interim compensation and, therefore, the impugned order passed by the Magistrate Court be quashed and set aside. In support of the said contention, learned advocate for the petitioners has placed reliance upon the decision rendered by the Honourable Supreme Court in the case of N. Ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read with Section 141 of the N.I. Act. After following procedure, the concerned Magistrate Court has issued process in the year 2018. It further transpires that thereafter respondent No. 2 complainant has filed an application at Exh.13 under Section 143A of the N.I. Act and requested the concerned Magistrate Court to direct the accused to pay 20% of the cheque amount by way of interim compensation. The concerned Magistrate Court passed an impugned order on 19.09.2019 whereby the direction is given to the accused to pay 20% of the cheque amount to the complainant within a period of 60 days towards compensation. At the outset, it is required to be noted that though the said order is passed in September, 2019, the petitioners have filed the present petition in July, 2021 and the same was listed for hearing for the first time on 19.07.2021. The petitioners have not given any explanation for the delay in filing the present petition. It is also not in dispute that till today, the petitioners have not complied with the direction issued by the concerned Magistrate Court and after a period of approximately two years, this petition has been filed. 7. At this stage, it is pertinent to note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se 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)." 9. The aforesaid provision has been introduced in the N.I. Act by way of an amendment in the year 2018. While considering the case of the petitioner, the object of such an amendment is also required to be kept in view. It is not in dispute that the petitioners are the Directors and authorised signatories of original accused No. 1 Company. It is also not in dispute that petitioner No. 1 has signed the cheques in question as authorised signatories of original accused No. 1 Company. In this factual background of the case, now, if the decision upon which reliance is placed by the learned advocate for the petitioners is required to be considered. 10. In the case of N. Harihara Krishnan Vs. J. Thomas (supra), the appellant before the Honourable Supreme Court was the managing partner of the Firm. The said appellant was also Director of Company known as M/s. Dakshin Granites (P) Ltd. (hereafter referred to as "Dakshin"). The respondent of the said case filed a complaint on 08.10.2012 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be joined as an accused at subsequent stage even beyond the prescribed period of limitation if the complainant satisfies the Court that he has sufficient cause for not making the complaint within the period of limitation. The Honourable Supreme Court has thereafter considered the submissions canvassed by the learned counsel appearing for the parties and while considering the question whether the Company can be joined subsequently as an accused after filing of the complaint under Section 138 of the N.I. Act, the Honourable Supreme Court has therefore in the aforesaid background observed in Paragraph-22 as under: "22. The High Court failed to appreciate that the liability of the appellant (if any in the context of the facts of the present case) is only statutory because of his legal status as the Director of Dakshin. Every person signing a cheque on behalf of a company on whose account a cheque is drawn does not become the drawer of the cheque. Such a signatory is only a person duly authorised to sign the cheque on behalf of the company/drawer of the cheque. If Dakshin/drawer of the cheque is sought to be summoned for being tried for an offence under Section 138 THE ACT beyond th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt cannot take cognizance of the offence. Disclosure of the name of the person drawing the cheque is one of the factual allegations which a complaint is required to contain. Otherwise in the absence of any authority of law to investigate the offence under Section 138, there would be no person against whom a Court can proceed. There cannot be a prosecution without an accused. The offence under Section 138 is person specific. Therefore, the Parliament declared under Section 142 the provisions dealing with taking cognizance contained in the CrPC give way to the procedure prescribed under Section 142. Hence the opening of non-obstante clause under Section 142. It must also be remembered that Section 142 does not either contemplate a report to the police or authorise the Court taking cognizance to direct the police to investigate into the complaint." 28. The question whether the respondent had sufficient cause for not filing the complaint against Dakshin within the period prescribed under the Act is not examined by either of the courts below. As rightly pointed out, the application, which is the subject-matter of the instant appeal purportedly filed invoking Section 319 CrPC, is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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