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-: 1 :- Misc. Criminal Case No.7943 of 2019.

HIGH COURT OF MADHYA PRADESH; BENCH AT INDORE

Misc. Criminal Case No.7943 of 2019.
(Padmesh s/o Devdutt Gupta and others
v/s
Tirupati Natural Resources and Infra Private Limited and another)

Indore, Dated : 22.02.2019 :-

Shri Ayush Jain, learned counsel for the petitioners.
Heard on the question of admission.
O R D E R
THE petitioners have filed the present petition
under Section 482 of the Code of Criminal Procedure being
aggrieved by the order dated 16.11.2018 passed in Criminal
Complaint Case No.246/2017, whereby they have been
directed to deposit 20% of the cheque amount within a
period of 60 days in exercise of power conferred under
Section 143-A of the Negotiable Instruments Act to the Trial
Judge.
[2] The Respondent No.1/complainant has filed the
complaint against the petitioners under Section 138 of the
Negotiable Instruments Act in respect of Cheque No.569332
dated 18.08.2017 issued for the payment of Rs.4,04,32,400-
00. The said cheque was presented in Union Bank of India,
Mhow Branch and the same was returned unpaid on
19.08.2017 due to insufficient funds in the account of the
present petitioners.
[3] After receipt of legal notice of demand when the
amount was not paid, then the complainant filed a complaint
case under Section 138 of the Negotiable Instruments Act on
04.10.2017. After service of summons, the present
petitioners appeared before the Court and filed an
application seeking exemption from appearance. On
16.11.2018 the charge under Section 138 of the Negotiable
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Instruments Act has been framed and read-over to the

present petitioners. They abjured the guilt and pleaded for
trial. They denied the documents filed along with the
complaint and sought permission for cross-examination of
complainant and his witnesses. The right of defence and
cross-examination was granted to them. The complainant
was directed to give the evidence on the next date of
hearing. By the same order, the learned Court has directed
the present petitioners to deposit 20% of the amount of the
cheque as required under Section 143-A of the Negotiable
Instruments Act. Being aggrieved by the aforesaid
condition, the present petition has been filed before this
Court.
[4] Learned counsel for the petitioners submits that
before imposing such a harsh condition, the learned Court
has not granted any opportunity of hearing to the petitioners.
Under Section 143-A of the Negotiable Instruments Act it is
the discretion of the Trial Court to impose condition of
payment of interim compensation up to 20% and the same is
not mandatory. Even if the interim compensation is liable to
be deposited, it is not mandatory to pass an order for 20% of
the amount. Therefore, the order is bad-in-law and liable to
be set-aside. The petitioners have good prima-facie case to
contest the criminal complaint case.
[5] Section 143-A has been inserted in the
Negotiable Instruments Act by way of amendment dated 2nd
August, 2018 (Act No.20 of 2018). The amended section is
reproduced below :-

“143-A. (1) Notwithstanding anything contained

in the Code of Criminal Procedure, 1973, the Court trying
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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 amount of the
cheque.
(3) The interim compensation shall be paid 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 complaint 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 year,
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 fine under section
421 of the Code of Criminal Procedure, 1973.
(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, shall be reduced
by the amount paid or recovered as interim compensation
under this section.”

[6] For the compliance of the above section, the

Court trying an offence under Section 138 may order the
drawer of the cheque to pay interim compensation to the
complainant where he pleads not guilty to the accusation
made in the complaint and upon framing of charge. As per
sub-section (2) the interim compensation shall not exceed
twenty per cent of the amount of the cheque. There is no
provision of grant of any opportunity before imposing such
condition. It is purely a discretion of the Trial Court to
impose a condition on the basis of the material available
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with the complaint. The amount involved in the present case

is more than four crores, therefore, the learned Court has
rightly imposed the maximum amount i.e. twenty per cent of
the cheque amount. At this stage the defence of the accused
is not liable to be considered as the same has not been
disclosed so far.
[7] Learned counsel for the petitioners further
submits that in the present case the offence said to have been
committed on 19.08.2017 when the cheque was returned
unpaid, and the amendment under Section 143-A came into
existence in the year 2018. The aforesaid argument of the
learned counsel is misconceived as the Section 143-A is
applicable to pending trial in which the Trial Court has been
given discretion to direct the drawer to pay interim
compensation at the stage of pleading not guilty by accused
and framing of charge against him. Therefore, the
amendment is applicable to a pending trial irrespective of
the fact that when the offence was said to have been
committed. Hence, the learned Trial Court has exercised the
discretionary power and it is not proper for this Court to
interfere with the same.
[8] Accordingly the petition is dismissed.

[ VIVEK RUSIA ]
JUDGE
(AKS)

Digitally signed by Anl Kumar

Sharma
Date: 2019.02.28 12:44:26 +05'30'