Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(Kar) 375

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. NAGAPRASANNA, J.
Mr. Murali S/o. Mr. Srinivasappa - Petitioner
Versus
Mr. Venkateshappa S/o. Mr. Muniyappa - Respondent
Criminal Petition No. 6980 of 2022
Decided On : 25-08-2022

Advocates Appeared:
For the Petitioner: Sri Keshava Murthy B.
For the Respondent: Sri A.V. Ananda.

Point of Law: Section 143A of the Act Power to direct interim compensation.-(1) Notwithstanding anything contained in the Criminal Procedure Code, 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.

Headnote:
Negotiable Instruments Act, 1881 - Section 143A, (1), (2), (3),(4), (5), 145(2), 45(2), 245-D, 119(2)(a), 138 - Criminal Procedure Code, 1973 - Section 311, 200, 138, 421, 357, 164 - Cheque Returned by Bank - Interim Compensation - Whether cross-examination of witness by his recall could be denied on ground that petitioner has not complied with order directing payment of interim compensation under Section 143A of Act. [Para 10]
Finding of the Court: Apex Court clearly holds that if interim compensation is not paid, it can be recovered as fine, by initiation of proceedings in terms of Section 143A(2) of Act - Therefore, judgment relied on by learned counsel appearing for complainant which was followed by learned Magistrate to deny cross-examination on ground that accused had not complied with order directing payment of interim compensation, as was directed, is rendered unacceptable, as it runs contrary to judgment rendered by Apex Court, which Court deem appropriate to follow, and not judgment rendered by coordinate Bench afore-quoted - It is trite law that a right to cross-examine is a valuable right of accused - Therefore, reason rendered by learned Magistrate for rejecting application filed under Section 311 CrPC seeking cross-examination of PW-1 is on face of it erroneous - Wherefore, accused has to be given an opportunity to cross-examine PW-1 by allowing application so filed by petitioner, which would be last opportunity to petitioner to cross-examine or further cross-examine PW-1, as case would be learned counsel for petitioner submits that next date of hearing - Therefore, concerned Court shall on that date permit petitioner to cross-examine complainant and cross-examination shall conclude on same date - Application filed by petitioner under Section 311 of CrPC is allowed and petitioner is permitted to cross/further examine respondent /PW-1 as one last opportunity, ensuing date or any other date, Court would deem fit to assign - Petitioner shall conclude cross-examination on said date and shall not be entitled to file any such application in future.
Result: Petition allowed.

ORDER :

The petitioner is before this Court calling in question two orders passed by the II Additional Senior Civil Judge and JMFC, Kolar – one dated 10-01-2022 under Section 143A of the Negotiable Instruments Act, 1881 (‘the Act’ for short) and the other dated 11-07-2022 rejecting the application filed by the petitioner under Section 311 of the CrPC.

2. Heard Sri B. Keshava Murthy, learned counsel for the petitioner and Sri A.V. Ananda, learned counsel for the respondent.

3. Facts germane for consideration of the lis succinctly stated are as follows:-

Respondent is the complainant and the petitioner is the accused. The petitioner and the respondent had certain transaction which leads the petitioner giving an instrument i.e., a cheque for an amount of Rs.10/- lakhs. The cheque having been presented for its realization is returned by the Bank for want of sufficient funds. Statutory notice being issued and all legal requirements being complied with, the complainant registers a crime invoking Section 200 of the CrPC in P.C.R.No.327 of 2021 and the learned Magistrate takes cognizance of the offence and registers a criminal case in C.C.No.1926 of 2021. The issue in the case at hand is not with regard to merit of the matter. In the said proceedings, the complainant prefers an application under Section 143A of the Act seeking interim compensation to the tune of 20% as is available under Section 143A of the Act.

4. This is allowed in part by the learned Magistrate by his order dated 10-01-2022 directing 10% of the amount involved in the instrument to be paid as interim compensation. The accused/petitioner had not complied with the order dated 10-01-2022. Pending compliance with the said order, at the time when the matter was posted for recording of statement under Section 313 CrPC, the petitioner files an application under Section 311 of the Cr.P.C. seeking recall of PW-1 for further cross-examination. The concerned Court by its order dated 11-07-2022 rejected the application inter alia on the ground that the petitioner had not deposited interim compensation amount in terms of its order dated 10-01-2022 and, therefore, the petitioner would not be permitted to cross-examine PW-1. It is these orders that are called in question in the subject petition.

5. The learned counsel appearing for the petitioner would contend with vehemence that both the orders suffer from non-application of mind as there are no reasons indicated for passing the order under Section 143A of the Act and for passing the order as rejecting the application under Section 311 CrPC, the right to cross-examine by recall of the witness, is denied.

6. On the other hand, the learned counsel appearing for the respondent has no objection for allowing the petition insofar as it concerns rejection of application under Section 311 of the CrPC but would defend the order passed on 10-01-2022 with regard to the payment of 10% of the amount of compensation as is directed by the Court.

7. In reply, the learned counsel for the petitioner would submit that he would restrict the petition challenging the order dated 11-07-2022 reserving liberty to challenge the order dated 10-01-2022 in a manner known to law, by filing an independent petition before this Court or any other competent judicial fora.

8. I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record, in furtherance whereof, the only issue that falls for my consideration is, “whether cross-examination of the witness by his recall could be denied on the ground that the petitioner has not complied with the order directing payment of interim compensation under Section 143A of the Act?”

9. To consider the said issue, it is germane to notice the reason rendered by the concerned Court for rejection of the application on 11-07-2022 is as follows :

“Complainant absent. Accused present. Counsel for the accused filed application under Section 311 CrPC seeking recall of PW-1 f