ORAL ORDER

1. Heard learned Advocate Ms. Ketki P. Jha for the petitioners, who submits that the proceedings under Section 421 of the Code of Criminal Procedure, 1973 has been invoked by the complainant in Criminal Case No.773/2019 which is under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to in short as ‘the NI Act’).

2. Learned Advocate Ms. Jha submits that an order has been passed on 02.03.2020 by the learned 3rd Additional Senior Civil Judge and ACJM, Bhuj-Kachchh wherein the present petitioners were to pay 15% of the cheque amount as an interim compensation within 60 days of the order. Ms. Jha submits that according to the order the amount would be Rs.14,50,000/-. It is further submitted that the petitioners could pay / deposit Rs.2,00,000/- only in compliance of the order and as the accused failed to make payment of Rs.12,50,000/-, a Distress Warrant came to be issued. Ms. Jha submits that if the Distress Warrant gets executed, the petitioners would be homeless and the property would be attached. The learned Advocate submitted that under the provisions of Section 143A of the NI Act, the discretion exercised is not by way of any mandatory order. Ms. Jha submits that the expression used in Section 143A of the NI Act is “may” and the concerned Judge is required to give reasons for passing the order under Section 143A. Ms. Jha also submits that the petitioners have shown their bonafide to comply with the order of the Court by making arrangements of payment of Rs.2,00,000/- and at present, even after a financial crunch due to COVID-19, the petitioners have shown their readiness to deposit at present Rs.5,00,000/- before the Trial Court. Ms. Jha submits that gradually during the course of the trial, the petitioners are willing to pay the rest of the amount towards the compliance of the order dated 02.03.2020.

3. Section 143A of the NI Act has been inserted by way of an amendment in the year 2018 which came into force on 01.09.2018. The Court trying an offence under Section 138 may order the drawer of the cheque to pay interim compensation to the complainant in a summary trial or a a summon case where he pleads not guilty to the accusation made in the complaint. The interim compensation should not exceed 20% of the amount of the cheque which should be paid within 60 days of the order. Sub-section (3) of Section 143A provides for a further period not exceeding 30 days if sufficient cause has been shown by the drawer of the cheque. Incase the drawer of the cheque is acquitted, the Court shall have to direct the complainant to repay the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India. The said section by way of provision provides in sub- section (5) that interim compensation may be recovered as if it were a fine under Section 421 of the Code of Criminal Procedure, 1973.

4. The complainant in accordance with the provisions of law is entitled to move the Court for Distress Warrant for recovery of the interim compensation amount, wherein in this case, it has been noted by the learned Judge in the order that Rs.2,00,000/- has been deposited and same has been declared in a Purshis at Exhibit 59. The learned Judge has observed that sufficient time has been given including 90 days time prescribed under the provisions of Section 143A of the NI Act.

5. Now, since the petitioners are ready and willing to pay substantial amount and under instructions, learned Advocate Ms. Jha submits that the petitioners are ready and willing to pay Rs.5,00,000/- before the trial Court and gradually pay the remaining amount, the order dated 21.06.2021 passed by the learned 3rd Additional Senior Civil Judge and Judicial Magistrate, Bhuj, Kachchh issuing the Distress Warrant is quashed and set aside.

6. The petitioners are directed to deposit Rs.5,00,000/-

(Rupees Five Lakhs Only) within a period of one month of this order and gradually rest of the amount be paid before