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When Conduct Matters: Clarifies Discretion in Under
In a significant ruling concerning the procedural landscape of cases, the of Jammu & Kashmir and Ladakh has reaffirmed that the power to grant under () is not an automatic entitlement. Instead, it is a discretionary tool that courts must exercise based on objective reasoning and the specific conduct of the parties involved.
The bench, presided over by Hon’ble Mr. Justice Wasim Sadiq Nargal, dismissed a plea filed by one Mohammed Ashraf Mir, who sought to an order directing him to pay in a case involving an alleged ₹80,00,000 dishonoured cheque.
The Genesis of the Dispute
The litigation began when the respondent raised a complaint against the petitioner under following the dishonour of a high-value cheque. During the trial, the respondent filed an application under Section 143-A, seeking .
The granted the application, a decision later upheld by the in a . Aggrieved by these concurrent findings, the petitioner approached the , characterizing the orders as "," "," and devoid of sound legal reasoning.
Battle of Arguments: Mandatory vs. Discretionary
The petitioner’s counsel argued that the trial court failed to consider the "" raised during cross-examination. Citing various precedents, the petitioner asserted that the under was and that the court erred by failing to evaluate the petitioner’s financial capacity or the substance of his defense before ordering payment.
The petitioner relied heavily on the ’s verdict in Rakesh Ranjan Shrivastava v. State of Jharkhand (), which emphasizes that Section 143-A must not be used in a "routine and manner."
Appointed as
,
, the Senior Additional Advocate General, provided a nuanced perspective. He argued that while the provision uses the word "may"—denoting discretion—this discretion must be exercised through a
"
evaluation of the material on record."
Unmasking the Court’s Reasoning
The
conducted a meticulous review of the trial court’s order. Justice Nargal observed that the lower court had not merely relied on the complaint but had assessed the "conduct of the accused" as a pivotal factor. The trial court had noted:
1. Repeated defaults in appearance by the accused.
2. The accused having obtained permission to travel abroad, which raised a
"real possibility of him protracting the proceedings or evading trial."
3. The admission of the cheque and signature, with only the underlying liability being disputed.
The clarified that when a trial court records these objective findings, the order cannot be dismissed as a "." The court held that the requirement of balancing the rights of the complainant—who faces the brunt of prolonged litigation—with those of the accused had been satisfied.
Key Observations from the Bench
Highlighting the standard for judicial scrutiny, the Court remarked:
-
On the Nature of Discretion:
"The power, however, is discretionary in nature and not mandatory. It is, therefore, expected that such discretion be exercised on the basis of relevant considerations and supported by reasons reflecting application of mind."
-
On Balancing Interests:
"The object of Section 143-A is to strike a balance between the rights of the complainant and the accused and to prevent abuse of process through prolonged litigation or deliberate absence."
-
On Compliance with Precedents:
"Far from supporting the petitioner's case, the aforesaid judgment [Rakesh Ranjan Shrivastava] reinforces the validity of the impugned orders. The requirement spelt out by the Hon'ble is that the Court must disclose reasons while exercising discretion."
The Final Verdict
Finding no
"arbitrariness,
or
,"
the
upheld the lower court’s order, directing the petitioner to pay 10% of the cheque amount as
.
This judgment serves as a vital reminder for litigants and practitioners: while the law protects the accused from financial burdens, it simultaneously shields the justice system from those who would use delays and procedural absenteeism to evade accountability. For future cases, this ruling establishes a firm threshold: when an accused’s conduct suggests an attempt to bypass the judicial process, they should expect courts to invoke their power to award .
