Full Text
HIGH COURT OF DELHI
Date of Decision: 06.03.2023
ANSHUL SHARMA ..... Petitioner
Through: Mr. Sumit K. Kalra, Advocate.
VINOD KUMAR ..... Respondent
Through: Mr. Ajay Harshana, Advocate.
Crl. M.A. 5844/2023 (Exemption)
Exemption allowed, subject to just exceptions.
The application stands disposed of.
JUDGMENT
1. This petition under Section 482 Cr.P.C has been filed by the petitioner with the following prayers:- “(i) the present Petition be admitted, the record of Hon’ble Appellant Court in Crl Revision no- 16/2023 and record of LD. Trail court in CC no -1672/2019 pending in the court of Shri Ankit Mittal, MM -04 N I Act S/E Saket Courts New Delhi regarding this matter be summoned and for the want of records any other orders may pleased be passed thereby.
(ii) the appropriate order may pleased be passed thereby setting aside the impugned order dt.11-01- 2023 in Crl Revison no 16/2023 Passed by Shri Arul Verma, ASJ (South/East), Saket Courts New Delhi thereby confirming the Order dated 18-10- 2022 in case tilled as Vinod Kumar ys Anshul Sharma in CC no-1672/2019 u/s 138 N.JAct Passed by the court of Sh. Ankit Mittal, M.M NI Act, South-East, Saket Courts New Delhi thereby allowing the application filed by complainant under section 143A, of N.I Act and said order may dated 18-10- 2022 may leased be also set-aside in the interest of justice, thereby allowing the present Petition in favour of the Petitioner.
(iii) Any other relief, which the Hon’ble Court deems think fit and proper in the circumstances of the present case, be also passed in favour of the Revisionist/ Petitioner.”
2. It is submitted by learned counsel for the petitioner that impugned order dated 11.01.2023 is against the law and has been passed in a mechanical manner. It is further submitted that learned Trial Court ignored the fact that the petitioner/accused has not admitted the alleged loan as such there is no legally enforceable liability. It is further submitted that the alleged amount i.e. Rs. 32 Lakhs which is stated to be paid in cash to the petitioner has not been proved. It is further submitted that Section 143 A is not applicable upon the petitioner as complainant has been partly cross-examined and cross was deferred for want of certain papers. He further submitted that application under Section 143A has been moved at belated stage with ulterior motive to twist the arms of the petitioner.
3. In the instant case, for proper adjudication, it is necessary to look into to the orders dated 18.10.2022 and 11.01.2023.
4. The relevant portion of the order dated 18.10.2022 reads as under: “7. It is pertinent to mention here that the accused in his defence recorded u/s 251 Cr.P.C have stated that he took the loan for the complainant in the year 2015-2016 and gave the cheque in question as security which was repaid in year 2016, however, complainant kept on taking money on that loan amount by charging the rate of interest at the rate of 20% per month which he stopped paying in the month of August, 2018 and thereafter, complainant misused the security cheque which was issued by him in the year 2015-16.
8. Coming back to the objections raised by the Ld. Counsel for the accused in his reply stating that the present application is not maintainable on the ground that the present Section is not applicable since the complainant has been partly cross examined is not tenable and frivolous because as per Section 143A N.I. Act, application for interim compensation is maintainable after the stage of framing of notice and no bar/exception has been crafted in the language of the Section 143A N.I. Act whereby if application is moved after the framing of notice it would be rendered infructuous or would be hit by the principle of laches and delay rather the language of Section 143A N.I. Act is liberal in nature. Secondly, the abjection of the Ld. Counsel for the accused there is no legal debt or enforceable liability of the accused is a matter of trial and cannot be adjudged at this stage. Thirdly, the objection of the Ld. Counsel for the accused is that the alleged loan of Rs. 32 Lakh in cash is not possible is also of matter of trial, however it is pertinent to mention here that in his defence recorded u/s 251 Cr.P.C, accused has himself admitted that he took the loan from the complainant and same has been repaid. Fourthly, the objection of the Ld. Counsel for the accused that the present complaint is not maintainable since the complainant is not licensed moneylender and therefore, it is barred by law is again matter of trial and cannot be adjudged at this stage. Further, even as per the complaint also alleged transaction is friendly in nature, therefore, the aspect whether loan was given in the capacity of money-lender or not would be determined at the stage of trial.
9. After considering the aforesaid plea of defense and the material on record, this court is of the considered view that there is primafacie material (at this stage) for allowing the application u/s 143A
10. Having said that, it is made clear that this order shall have no bearing on the merits of the complaint, since the complaint has been judged only on a prima-facie basis at this stage. Accordingly, application is disposed off as allowed.”
5. Further, the relevant portion of the order dated 11.01.2023 reads as follows:
10. In the present case too, as is evinced from a perusal of order sheet dated 09.12.2021. the twin conditions of complaint being tried as a summons case, and the notice having been framed against the accused to which he pleaded not guilty, are prima facie satisfied. Lastly, this Court also concurs with the reasoning of the Ld. Trial Court qua the fact that the moving of application u/s 143A Of NI Act after framing of notice, would not render the application infructous. The legislative intent behind enaction of Section 143A of NI Act would be stultified if the complainant would be debarred from moving an application u/s 143A of NI Act a tad belatedly. In any case the complainant has moved the application within a couple of dates after framing of notice.”
6. Furthermore, a bare perusal of the orders dated 18.10.2022 and 11.01.2023 shows that petitioner has admitted his liability qua alleged loan and issued post dated cheques as security. As far as the contention with regard to legal enforceability; the alleged loan of Rs.32 Lakhs taken in cash and other contentions with regard to maintainability is concerned, in a nutshell, these are the matter of trial and cannot be decided at this stage.
4. Merely because it is stated by the counsel for the petitioner that huge amount of Rs.32 Lakhs cannot be given in cash and thus, interim compensation cannot be granted, warrants no interference. Furthermore, the learned Trial Court noted in the contested ruling that the first prerequisite for a request under Section 143A of the NI Act is that the complaint be heard as a summary or summons trial case and that a notice be issued on which the accused has pleaded not guilty.
5. Section 143A of the NI Act which came into force with effect from 1st September, 2018 reads 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 summon case, where the drawer pleads not guilty to the accusation made in the complaint; and (b) in any other case, upon framing charges. (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 pad 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 find 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).”
6. The trial must be a summary trial or a summons case, the notice or charge must be framed, and the petitioner must have pleaded not guilty. These are the crucial requirements that must be met before directing interim compensation. As a result, the criteria of Section 143A of the NI Act are established beyond a reasonable doubt.
7. In Surinder Singh Deswal & Ors. Vs. Virender Gandhi & Anr. (2020) 2 SCC 514, the Hon’ble Supreme Court held that Section 148 NI Act used the word “may” is generally to be construed as a rule as “shall” and not as an exception for which the Court has to assign special reasons for directing interim compensation.
8. In view of the discussion hereinabove, this Court does not deem fit to issue notice to the respondent and prayers are untenable in law. Without going into the merits of the case, the petition is dismissed and the orders dated 18.10.2022 and 11.01.2023 are upheld.
RAJNISH BHATNAGAR, J MARCH 06, 2023