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TMI Blog2023 (3) TMI 1532X X X X Extracts X X X X X X X X Extracts X X X X ..... s a discretionary power, the Court has to exercise it by assigning proper reasons of the conclusion, failing which the exercise of discretion will become arbitrary. Whether case is made out for exercising extraordinary jurisdiction of this Court warranting interference with the impugned order? - HELD THAT:- This Court is of considered view that, the discretion having not been properly exercised by the trial Court while awarding 20% amount of compensation. The learned trial Court has not assigned any reasons as to why the complainant has been awarded interim compensation @ 20% of the cheque amount and not less than 20%. It is the discretion of the Court to award interim compensation from 1% to 20%, but subject to recording of proper reasons. On the facts of the present case, the learned trial Court has rightly did not discussed with the issue of defense raised by the accused herein as the question of disputed facts require to be tried after full fledge of the trial. However, the trial Court while determining the percentage of interim compensation, he or she should have assigned proper reasons stating that why the interim compensation amount @ 20% is required to be paid by the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants-accused availed a loan, under loan agreement dated 31.07.2018 and amount of Rs. 5 crore was disbursed on various dates. The loan was repayable within 12 months from the date of disbursement along with the interest. The accused have defaulted in making payment. The cheques earlier given were dishonoured and thereafter, fresh four cheques each of Rs. 1 crore issued in favour of the complainant which were again dishonoured which led to filing of criminal complaint and process was issued to the applicants-accused. The Court has recorded the plea on 13.12.2021 and matter posted for recording evidence on 17.08.2022. 2.2 The application Exh.14 was filed by the complainant under Section 143A of the N.I. Act and the same was opposed by the applicants herein by filing reply Exh.16, contending inter alia, that, the dispute is civil dispute and maliciously with dishonest intention the criminal complaint is filed; that, there is neither any debt or liability, nor, any default for which a criminal proceeding can be initiated under Section 138 of the N.I. Act; that, the accused had entered into loan agreement dated 31.07.2018 with the complainant for securing a loan of Rs. 5 crore for expans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t no.2; That, the interim compensation under Section 143A of the N.I. Act is not mandatory and can be granted after assigning sufficient reasons for the same and therefore, the impugned order be quashed on this ground alone. 6. Mr. Mishra, learned counsel further submitted that, while passing the order, the factual aspect and dispute raised in the reply having not been considered by the trial Court. Referring to the statement and object of insertion of Section 143A, it was submitted that, the object behind the insertion of Section 143A is to provide relief during the pendency of the proceedings so that genuine complainants are not left waiting for years on account of undue delays and dilatory tactics of the accused. On the facts on hand, the applicants have appeared in every proceedings and there was no delay on their part which facts having not been considered by the trial Court in its true perspective and therefore, the trial Court has mechanically without considering the scope and purport of Section 143A, passed the order which does not sustain in eye of law. 7. Mr. Mishra, learned counsel raised the contention that, the learned trial Court erroneously passed an order of convers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Courts. Citing the another judgment of the Apex Court in the case of Shalini Shyam Shetty Anr vs. Rajendra Shankar Patil (2010 8 SCC 329) to submit that, in exercise of its powers of superintendence, High Court cannot interfere with mere errors of law or fact or just because another view then the one taken by the Courts subordinate to it, is a possible view. Thus, therefore, he urged that, in the present case, the Court below has passed the impugned order considering contentions raised by respective parties, and after considering the contents of the complaint and reply of the accused-applicants and provision of Section 143A and therefore, at this stage, no any exceptional circumstances exist to exercise extraordinary jurisdiction, warranting interference by this Court. 11. Heard learned counsel for the respective parties. Perused the impugned order and material placed on record. 12. Before adverting to the contentions raised by learned counsel for the respective parties, it would be relevant to note that, Section 143A of the N.I. Act was inserted by Act 20 of 2018 and was brought into effect from 01.09.2018. It is also important to understand the intent behind introduction of said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of M/s. Jsb Cargo and Freight Forwarder Pvt. Ltd. (CRL.MC. 2663 of 2021) decided on 20.12.2021, held that, the provision of Section 143A N.I. Act essentially a directory and cannot be termed as mandatory in nature. Even, the Karnataka High Court in Criminal Petition No.100261/2022 (Vijaya vs. Shekharappa Anr.) decided on 17.02.2022 reported in 2022 Live Law (Kar) 82 has also taken similar view. Thus, the section is directory in nature and considering the words may the provision itself shows that discretion is vested with trial Court to direct interim compensation to be paid by the accused and same shall not exceed 20% of amount of cheque. 15. It is settled position of law that, when there is a discretionary power, the Court has to exercise it by assigning proper reasons of the conclusion, failing which the exercise of discretion will become arbitrary. 16. In light of the settled law and considering the peculiar facts and circumstances of the present case, the issue arise for determination whether case is made out for exercising extraordinary jurisdiction of this Court warranting interference with the impugned order? 17. Before dealing with the issue, let us examine the conclusi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he judgment, gave some illustration and/or example on the aforesaid subject which reads thus: Therefore, whenever the trial Court exercises its jurisdiction under Section 143A(1) of the Act, it shall record reasons as to why it directs the accused person (drawer of the cheque) to pay the interim compensation to the complainant. The reasons may be varied. For instance, the accused person would have absconded for a longtime and thereby would have protracted the proceedings or the accused person would have intentionally evaded service for a long time and only after repeated attempts, appears before the Court, or the enforceable debt or liability in a case, is borne out by overwhelming materials which the accused person could not on the face of it deny or where the accused person accepts the debt or liability partly or where the accused person does not cross examine the witnesses and keeps on dragging with the proceedings by filing one petition after another or the accused person absonds and by virtue of a non-bailable warrant he is secured and brought before the Court after a long time or he files a recall non-bailable warrant petition after a long time and the Court while considering ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e applicants. Even otherwise, while determining the interim compensation, it is not desirable by the trial Court to deal with the question of disputed facts and defense, as it is the subject of trial proceedings. 22. The contention raised by learned counsel for the respondent no.2 that the petition in the present form is not maintainable, is not acceptable. There cannot be any dispute with regard to law laid down by the Apex Court in the cited judgments, but fact remains that the questions raised in the cited judgments were pertaining to power to be exercised under supervisory jurisdiction under Article 227 of the Constitution of India, whereas in the present case, the petition has been filed under Article 226 of the Constitution of India. 23. For the foregoing reasons, the impugned order dated 13.04.2022 is quashed and the matter is remanded back to the trial Court with a direction to decide the application Exh.14 within a period of 30 days from the date of receipt of this order, in accordance with law. 24. Nothing in this judgment shall tantamount to a finding on the merits of the case. 25. In view of the issue involved in the present application, the Registrar General is directe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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