Partly allowed

Ravi v. a N Moggannagowda

Karnataka HC13 Oct 2020CRL.P/462/2020

Case brief

AI extract

What is this about?

The High Court held that non-deposit of interim compensation under Section 143A NI Act disqualifies the accused from cross-examination under Section 145(2). However, since the petitioner later deposited the amount, the impugned order was set aside and the matter remanded to the trial court.

What did the court decide?

The impugned order dated 02.01.2020 was set aside. The matter was remanded to the trial court to permit cross-examination after the incidental deposit was transferred.

Ravi Vs a N Moggannagowda — Cheque Dishonour | Karnataka HC (2020)

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Crl.P.No.462 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF OCTOBER, 2020

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BEFORE

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THE HON’BLE MR.JUSTICE SURAJ GOVINDARAJ

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CRIMINAL PETITION No.462/2020

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BETWEEN:

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RAVI S/O LATE HUCCHEGOWDA AGED ABOUT 45 YEARS RESIDING AT: LALANKERE VILLAGE, BINDIGANAVILE HOBLI, NAGAMANGALA TLAUK, MANDYA DISTRICT – 571 802. ..PETITIONER (BY SRI BHARGAVA D BHAT, FOR SRI AJIT P B, ADVOCATE)

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AND:

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A N MOGGANNAGOWDA S/O LATE NINGEGOWDA, AGED ABOUT 47 YEARS AT: KADABAHALLI VILLAGE, BINDIGANAVILE HOBLI, NAGAMANGALA TALUK MANDYA DISTRICT – 571 802. ..RESPONDENT

(RESPONDENT SERVED)

Crl.P.No.462 of 2020

THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 02.01.2020 IN C.C.No.477/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., NAGAMANGALA (AS PER ANNEXURE-A).

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this court seeking for setting aside the order dated 02.01.2020 passed in C.C.No.477/2019 by the Senior Civil Judge and JMFC, Nagamangala.

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By way of the said order dated 02.01.2020, the Senior Civil Judge, Nagamangala observing that the petitioner herein who is accused therein had not complied with the order passed on 28.10.2019 directing the petitioner to deposit a sum equivalent to 20% of the cheque amount within a period of 60 days, rejected the application filed by the petitioner under Section 145(2) of the Negotiable Instruments

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Act (Hereinafter referred to as NI Act) seeking permission to cross examine the complainant therein as also recording the statement that the complainant had no further evidence on the ground that the petitioner had failed to cross examine PW-1 recordal of the statement under Section 313 was dispensed with on account of failure to comply with the provisions of Section 143A of the Negotiable Instruments Act, defendants evidence was taken as

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`Nil’ and posted for arguments on 07.01.2020.

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Sri.Bhargava D. Bhat, learned counsel for petitioner would submit that

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3.1 in terms of Section 143A of NI Act if an order is passed directing the accused to deposit any interim compensation within a period of 60 days from the date of the order,

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3.2 the same could be with further leave of the court be extended by a period of 30 days

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Crl.P.No.462 of 2020

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3.3 in the event of the same not being paid that amount has to be recovered in terms of Section 421 of Code of Criminal Procedure, 1973 as per Section 143A(5) by issuance of a Fine Levy Warrant (FLW).

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3.4 On this ground he submits that the Magistrate could not have on the basis of non deposit of the amount proceed to deny the petitioner an opportunity to cross examine PW-1, to lead his evidence etc., as done.

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3.5 The recovery of interim compensation is a separate proceeding it was open for the complainant to initiate proceedings under Section 421 of Cr.P.C.

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3.6 He relies on the decision of the Hon’ble Apex Court in Mandvi Cooperative Bank Limited Vs Nimesh B.Thakore reported in 2010(3)

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SCC 83 more particularly paragraph 33 thereof which is reproduced here under:

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“33. We are completely unable to appreciate the submission. The plea for a literal interpretation of Section 145(2) is based on the unfounded assumption that the language of the section clearly says that the person giving his evidence on affidavit, on being summoned at the instance of the accused must start his deposition in court with examination-in-chief. We find nothing in Section 145(2) to suggest that, We may also make it clear that Section 137 of the Evidence Act does not define “examine” to mean and include the three kinds of examination of a witness; it simply defines “examination-in-chief”, “crossexamination” and “reexamination”. What Section 145(2) of the Act says is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein.

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What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in the light of the provision of Section 145(1) and having regard to the object and purpose of the entire scheme of Sections 143 to 146. The scheme of Sections 143 to 146 does not in any way affect the Judge’s powers under Section 165 of the Evidence Act.”

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3.7 He submits that once an application is filed by

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accused under Section 145(2) of the N I Act, Magistrate had no discretion but to allow the application to cross examine PW-1.

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3.8 Magistrate could not have referred to noncompliance of the order passed under Section 143A of the Act to deny the accused the right to cross examine and as such he submits that the order is required to be quashed on both the above grounds.

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Though the respondent is served, none appears for respondent. Hence, the matter is taken up in the absence of respondent.

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On the basis of the submissions made the points that would arise for determination by this court are as under:

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5.1 When an order for making payment of interim compensation is passed under Section 143A of the Act and if the same is violated by the accused, whether accused could still continue to claim a right to cross examine the complainant and defend the matter despite such non compliance?

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5.2 Whether on an application being filed under Section 145(2) of the Negotiable Instruments Act the accused would be automatically entitled to cross examine complainant’s witness even though accused has defaulted with or not complied with the directions issued by the said Court.

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5.3 Does the order dated 02.01.2020 passed by the Senior Civil Judge and JMFC Nagamangala require any interference?

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5.4 What order?

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I Answer the above points as under

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Answer to Point No.1 – When an order for making payment of interim compensation is passed under Section 143A of the Act and if the same is violated by the accused, whether accused could still continue to claim a right to cross examine the complainant and defend the matter despite such non compliance?

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7.1 On perusal of the order sheet, it is seen that the complaint was filed on 18.07.2019 a sworn statement of the complainant was recorded on the same day and the Magistrate directed the office to register the case as

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Criminal Complaint and issued summons to the accused returnable by 21.09.2019.

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7.2 Though summons was served, the accused did

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not appear on 21.09.2019 nor on the subsequent dates. Hence, the Magistrate issued non-bailable warrant to secure the presence of the accused. On service of same accused advanced the matter to 28.10.2019

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seeking for recall of the said warrant as also for grant of bail. Considering that the cheque amount was Rs.15,00,000/- the accused was released on bail on a personal bond of Rs.5,00,000/- and non-Bailable Warrant was recalled since accused claimed trial.

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7.3 The Magistrate passed an order under Section 143A of the Negotiable Instruments Act directing the accused to deposit 20% of the

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cheque amount as interim compensation within a period of 60 days of the said order. The matter was called out on 30.11.2019 and adjourned to 30.12.2019 and thereafter adjourned to 02.01.2020 during which period 60 days expired despite which the accused did not deposit the said amount.

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7.4 Sri.Bhargava D. Bhat, learned counsel for petitioner contended that in the event of interim compensation not being paid by the accused the only recourse the complainant would have is to initiate proceedings under Section 421 of Cr.P.C seeking fine levy warrant in terms of Section 143A(5) of the Negotiable Instruments Act.

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7.5 I am of the considered opinion that those proceedings though always available to complainant to enforce the order would not

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permit the accused to continue to defend the proceedings without compliance of the order passed by the court. Recovery of the interim compensation is different from compliance with an order passed by the court.

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7.6 Once an order under Section 143 (A) of the NI Act is passed and the same is not complied with in the time prescribed, the amount ordered as interim compensation can be recovered in the manner provided under Section 421 of Cr.P.C, seeking for issuance of

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a Fine Levy Warrant, which would include attachment and sale of any movable property of the accused or issuance of a warrant to the Collector of the concerned district to recover

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the same as arrears of land revenue from the movable or immovable property of the accused or both.

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7.7 Once an order of deposit of interim compensation is passed under Section 143A of the Act, the said interim compensation would have to be deposited within 60 days of the said order unless the accused makes out a reason for extension of time and seeks for such extension, even if such an extension is granted that extension would be limited to a maximum period of 30 days over and above the earlier period of 60 days mentioned above. There cannot be an extension beyond the 90 day period.

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7.8 In the present case no application was made seeking such extension, let alone making out grounds for such extension. In view thereof it was required for the accused to deposit said 20% of the cheque amount within a period of 60 days from the date of the order

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i.e., 28.10.2019 which expired on 27.12.2019. Having failed to comply with the said order it was not open for the accused to continue to default on the order and seek to defend the proceedings and further contend that the only recourse available to the complainant is proceedings under Section 421 of Cr.P.C.

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7.9 The whole intent and purpose of passing an order under Section 143 (A) is for the same to be followed and affording a succor to the complainant who has not received the amounts due to the complainant.

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7.10 An order passed by the court is required to be followed as long as the same is in force. No party can wantonly flout the order and contend that it would want to continue to

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either prosecute or defend a proceedings, allowing the same would amount to condoning such default and rendering the order passed a paper order.

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7.11 Thus point No.1 is answered by holding that once an order is passed under Section 143A directing payment of interim compensation if the compensation is not deposited accused would not have right to continue to defend proceedings having not complied with the order of the court. The Complainant’s right to recover the same in terms of Section 421 of the Cr. P. C is an independent right and would always be so available.

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Answer to Point No.2 – Whether on an application being filed under Section 145(2) of the Negotiable Instruments Act the accused would be automatically entitled to cross

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examine complainant’s witness even though accused has defaulted with or not complied with the directions issued by the said Court.

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8.1 Sri. Bhargava D. Bhat, learned counsel for petitioner has relied on the decision in Mandvi’s case stated supra to contend that once an application under Section 145(2) of the Act is filed, court would not have any discretion but to permit the accused to cross examine complainant’s witness.

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8.2 This would be the case if there was no violation or non-compliance by the accused with any of the orders passed by the Magistrate. The accused cannot by relying on Section 145(2) and decision of the Apex Court contend that the accused is entitled to cross examine the witness without complying the

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orders passed by the court. This compliance could be as regards orders passed under Section 143A of the Act or any order that might have been passed requiring the compliance of the accused.

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8.3 Be that as it may the decision in Mandvi’s

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case was rendered on 11.01.2010 whereas the amendment of Negotiable Instruments Act introducing Section 143 (A) and 148 came into force on 01.09.2018. Thus, the decision rendered on 11.01.2010 is prior to amendment Act, hence the same would not apply to all situations post the amendment.

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8.4 Thus point No.2 is answered by holding that merely because an application is filed under Section 145(2) of the Negotiable Instruments Act, the accused would not automatically be entitled to cross examine complainant’s

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witness, such accused in order to claim a right to cross examine would have to have complied with any order that might have been passed requiring his compliance, without complying with such order including any order passed under Section 143 (A) of the Negotiable Instruments Act, the accused cannot be permitted to cross examine the Complainant’s witness.

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Answer to Point No.3 – Does the order dated 02.01.2020 passed by the Senior Civil Judge and JMFC Nagamangala require any interference?

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9.1 In view of the above discussion, I am of the considered opinion that the order passed by trial court is proper and just and does not require any interference.

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10. Answer to Point No.4 – What order?

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10.1 While the above matter was pending the petitioner- accused was directed to deposit a Rs.3,00,000/- being equivalent to 20% of the cheque amount by order dated 02.01.2020 within a period of four weeks from the date of the said order.

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10.2 Though belatedly accused has deposited the said amount through Demand Draft dated 22.09.2020 produced along with memo on 09.10.2020 with this court.

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10.3 Taking into consideration the said deposit, I am of the opinion that though belatedly the requirement under Section 143A has been complied by the petitioner and delay in compliance can be excused. In view thereof the order dated 02.01.2020 is set aside.

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Matter is remanded to Senior Civil Judge and JMFC, Nagamangala to proceed with the matter, as if the order under Section 143 (A) is complied with and permit the Petitioner/Accused to cross examine the Complainant.

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10.4 The amount deposited before this court is directed to be transferred to the account of the said court, for passing such orders as it deems just.

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Petition is accordingly allowed in part.

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Sd/-

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JUDGE

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SBN

Ravi v. a N Moggannagowda

Case brief

What is this about?

What did the court decide?

Ravi v. a N Moggannagowda

Case brief

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