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TMI Blog2024 (6) TMI 702X X X X Extracts X X X X X X X X Extracts X X X X ..... a lease/license for a canteen at Sena Bhawan by the respondent and securing employment of the petitioner's children, son- in-law, friend of his daughter, and a friend of his son-in-law at the said canteen. The respondent is stated to be working as an official at Sena Bhawan. Therefore, prima facie, the consideration of the above payment does not appear to be lawful - That apart, there is no proof of such payment filed with the complaint. There is also no written agreement. All that the petitioner has to show are the cheques. The power under Section 143A of the NI Act being discretionary in nature, the order can be interfered with by this Court only if it is found to be perverse or so unreasonable so as to conclude that discretion could not have been exercised in the said manner. This Court is not sitting as a Court of Appeal against the Order passed by the learned Trial Court in exercise of its powers under Section 143A of the NI Act. There are no merit in the challenge of the petitioner to the Impugned Order - petition dismissed. - HON BLE MR. JUSTICE NAVIN CHAWLA For the Petitioner : Ankit Singh and Danish Ali , Advs ORDER NAVIN CHAWLA , J. ( ORAL ) CRL. M. A. 17376 / 2024 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laint before the learned Trial Court. 6. The learned Trial Court vide its Order dated 24.12.2019 had issued summons to the respondent in the subject complaint. The learned Trial Court framed Notice under Section 251 of the Cr.P.C. against the respondent on 29.03.2022. 7. Thereafter, the petitioner filed an application under Section 143A of the NI Act, seeking interim compensation, which came to be dismissed by the learned Trial Court by way of the Impugned Order. 8. The petitioner being aggrieved of the said Order has filed the present petition. Submissions of the Learned Counsel for the Petitioner: 9. The learned counsel for the petitioner submits that the learned Trial Court has erred in holding that the petitioner has failed to make out a strong prima facie case against the accused/respondent. He submits that the respondent has not denied his signatures on the cheques in question. Therefore, in terms of Section 139 of the NI Act, there is a presumption that the cheques were issued in discharge of a debt and liability. This presumption itself is sufficient to make out a strong prima facie case against the respondent/accused. 10. He submits that the learned Trial Court has further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in 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. (Emphasis supplied) 14. A reading of the above provision would show that the Court adjudicating upon a Complaint under Section 138 of the NI Act 'may' order the drawer of the cheque in question to pay any amount, not exceeding twenty per cent of the amount of the cheque, as interim compensation to the complainant in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint or in any other case, upon the framing of charges. It is no longer res integra that the said power of the Court to direct the drawer to pay interim compensation under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to convert a summons case into a warrant case. Only in a warrant case, there is a question of framing charge. Therefore, clause (b) of sub-section (1) of Section 143-A will apply only when the case is being tried as a warrant case. In the case of a summary or summons trial, the power under sub-section (1) of Section 143-A can be exercised after the plea of the accused is recorded. xxxx 14. Non-payment of interim compensation by the accused does not take away his right to defend the prosecution. The interim compensation amount can be recovered from him treating it as fine. The interim compensation amount can be recovered by the trial court by issuing a warrant for attachment and sale of the movable property of the accused. There is also a power vested with the court to issue a warrant to the Collector of the District authorising him to realise the interim compensation amount as arrears of land revenue from the movable or immovable property, or both, belonging to the accused. 15. For recovery of the interim compensation, the immovable or movable property of the accused can be sold by the Collector. Thus, non-payment of interim compensation fixed under Section 143-A has drastic c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used in Section 143-A, cannot be construed or interpreted as shall . Therefore, the power under sub-section (1) of Section 143-A is discretionary. xxxx 21. As held earlier, Section 143-A can be invoked before the conviction of the accused, and therefore, the word may used therein can never be construed as shall . The tests applicable for the exercise of jurisdiction under sub-section (1) of Section 148 can never apply to the exercise of jurisdiction under sub- section (1) of Section 143-A of the NI Act. Factors to be considered while exercising discretion 22. When the court deals with an application under Section 143-A of the NI Act, the court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application under sub-section (1) of Section 143-A. The presumption under Section 139 of the NI Act, by itself, is no ground to direct the payment of interim compensation. The reason is that the presumption is rebuttable. The question of applying the presumption will arise at the trial. Only if the complainant makes out a prima facie case, a direction can be issued to pay interim compen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uestion, in the hand of the petitioner/complainant showing the liability owed by the respondent/accused, and in view of the above defence of the respondent/accused, it cannot be said that the petitioner has been able to make out such a strong prima facie case in his favour so as to direct the respondent to deposit the interim compensation. 19. The learned counsel for the petitioner has placed heavy reliance on the presumption under Section 139 of the NI Act, to submit that interim compensation should have been granted by the learned Trial Court in favour of the petitioner. I do not find any merit in the said submission made by the learned counsel for the petitioner. In Rakesh Ranjan Shrivastava (supra), the Supreme Court has clarified that the presumption under Section 139 of the NI Act, by itself, is not a ground to direct the payment of interim compensation; presumption being rebuttable, the question of applying the same will arise only in the Trial. 20. I also do not find any merit in the submission made by the learned counsel for the petitioner that the respondent has been deliberately protracting the adjudication of the Trial because bailable warrants were issued against the r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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