Interim Compensation In Cheque Dishonour Cases U/S 143A NI Act Isn't Mandatory : Supreme Court Lays Down Broad Parameters

19. Subject to what is held earlier, the main conclusions can be summarised as follows:

a. The exercise of power Under Sub-section (1) of Section 143A is discretionary. The provision is directory and not mandatory. The word "may" used in the provision cannot be construed as "shall."

b. While deciding the prayer made Under Section 143A, the Court must record brief reasons indicating consideration of all relevant factors.

c. The broad parameters for exercising the discretion Under Section 143A are as follows:

i. The Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the Accused in the reply to the application. The financial distress of the Accused can also be a consideration.

ii. A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case.

iii. If the defence of the Accused is found to be prima facie plausible, the Court may exercise discretion in refusing to grant interim compensation.

iv. If the Court concludes that a case is made out to grant interim compensation, it will also have to apply its mind to the quantum of interim compensation to be granted. While doing so, the Court will have to consider several factors such as the nature of the transaction, the relationship, if any, between the Accused and the complainant, etc.

v. There could be several other relevant factors in the peculiar facts of a given case, which cannot be exhaustively stated. The parameters stated above are not exhaustive.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 741 of 2024

Decided On: 15.03.2024

Rakesh Ranjan Shrivastava Vs. The State of Jharkhand and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

 Citation: 2024 INSC 205,MANU/SC/0204/2024.

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Supreme Court: Sessions or Pocso Courts Must Order Victim Compensation or interim compensation In Cases Of Sexual Offences Against Minors And Women

 In the circumstances, we direct that a Sessions Court, which adjudicates a case concerning the bodily injuries such as sexual assault etc. particularly on minor children and women shall order for victim compensation to be paid having regard to the facts and circumstances of the case and based on the evidence on record, while passing the judgment either convicting or acquitting the Accused. Secondly, the said direction must be implemented by the District Legal Services Authority or State Legal Services Authority, as the case may be, in letter and spirit and in the quickest manner and to ensure that the victim is paid the compensation at the earliest. {Para 16}

17. There can also be a direction for payment of interim compensation which could be made by the Sessions Court depending upon the facts of each case.

19. In the facts and circumstances of the present case, the second Respondent shall also be entitled to be considered for compensation Under Rule 7 of the POCSO Rules, 2012 and now Under Rule 9 of the POCSO Rules, 2020.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 4495 of 2024.

Decided On: 04.11.2024

Saibaj Noormohammad Shaikh Vs. State of Maharashtra and Ors.

Hon'ble Judges/Coram:

B.V. Nagarathna and Pankaj Mithal, JJ.

Citation:  MANU/SC/1363/2024.

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Supreme Court: Sessions Court Must Order Victim Compensation In Cases Of Bodily Injury To Women And Children

On a reading of the order and judgment of the Trial

Court, which has convicted the appellant herein for the

offence, inter alia, under Section 376-D of the IPC except

imposing the fine of Rs.12,500/- (Rs.10,000/- + Rs.2,500/-),

we find that no direction for payment of victim compensation

to the second respondent/victim has been ordered. Such a lapse

on the part of Sessions Court would only delay payment of any

compensation under Section 357-A of the CrPC.

In the circumstances, we direct that a Sessions Court,

which adjudicates a case concerning the bodily injuries such

as sexual assault etc. particularly on minor children and

women shall order for victim compensation to be paid having

regard to the facts and circumstances of the case and based

on the evidence on record, while passing the judgment either

convicting or acquitting the accused. Secondly, the said

direction must be implemented by the District Legal Services

Authority or State Legal Services Authority, as the case may

be, in letter and spirit and in the quickest manner and to

ensure that the victim is paid the compensation at the

earliest.

There can also be a direction for payment of interim

compensation which could be made by the Sessions Court

depending upon the facts of each case.

  IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. OF 2024

(@ Special Leave Petition (Crl.) No. 13890/2024)

SAIBAJ NOORMOHAMMAD SHAIKH Vs  STATE OF MAHARASHTRA & ANR

Dated: NOVEMBER 04, 2024.

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Supreme Court: What factors Appellate court should consider while deciding application for grant of interim compensation U/S 143A of N I Act?

 FACTORS TO BE CONSIDERED WHILE EXERCISING DISCRETION

16. When the court deals with an application Under Section 143A of the N.I. Act, the Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the Accused in the reply to the application Under Sub-section (1) of Section 143A. The presumption Under Section 139 of the N.I. Act, by itself, is no ground to direct the payment of interim compensation. The reason is that the presumption is rebuttable. The question of applying the presumption will arise at the trial. Only if the complainant makes out a prima facie case, a direction can be issued to pay interim compensation. At this stage, the fact that the Accused is in financial distress can also be a consideration. Even if the Court concludes that a case is made out for grant of interim compensation, the Court will have to apply its mind to the quantum of interim compensation to be granted. Even at this stage, the Court will have to consider various factors such as the nature of the transaction, the relationship, if any, between the Accused and the complainant and the paying capacity of the Accused. If the defence of the Accused is found to be prima facie a plausible defence, the Court may exercise discretion in refusing to grant interim compensation. We may note that the factors required to be considered, which we have set out above, are not exhaustive. There could be several other factors in the facts of a given case, such as, the pendency of a civil suit, etc. While deciding the prayer made Under Section 143A, the Court must record brief reasons indicating consideration of all the relevant factors.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 741 of 2024

Decided On: 15.03.2024

Rakesh Ranjan Shrivastava Vs. The State of Jharkhand and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/0204/2024,2024 SCC OnLine SC 309.

Read full Judgment here: Click here.

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Supreme Court: Appellate court has discretion to grant interim compensation U/S 143A of negotiable instruments Act

At this stage, we may note Sub-section (1) of Section 148. Section 148 reads thus:

148. Power of Appellate Court to order payment pending appeal against conviction.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction Under Section 138, the Appellate Court may order the Appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court:

Provided that the amount payable under this Sub-section shall be in addition to any interim compensation paid by the Appellant Under Section 143A.

(2) The amount referred to in Sub-section (1) shall be deposited 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 Appellant.

(3) The Appellate Court may direct the release of the amount deposited by the Appellant to the complainant at any time during the pendency of the appeal:

Provided that if the Appellant is acquitted, the Court shall direct the complainant to repay to the Appellant the amount so released, 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.

Sub-section (1) of Section 148 confers on the Appellate Court a power to direct the Appellant/Accused to deposit 20 per cent of the compensation amount. It operates at a different level as the power thereunder can be exercised only after the Appellant/Accused is convicted after a full trial. {Para 13}

14. In the case of Section 143A, the power can be exercised even before the Accused is held guilty. Sub-section (1) of Section 143A provides for passing a drastic order for payment of interim compensation against the Accused in a complaint Under Section 138, even before any adjudication is made on the guilt of the Accused. The power can be exercised at the threshold even before the evidence is recorded. If the word 'may' is interpreted as 'shall', it will have drastic consequences as in every complaint Under Section 138, the Accused will have to pay interim compensation up to 20 per cent of the cheque amount. Such an interpretation will be unjust and contrary to the well-settled concept of fairness and justice. If such an interpretation is made, the provision may expose itself to the vice of manifest arbitrariness. The provision can be held to be violative of Article 14 of the Constitution. In a sense, Sub-section (1) of Section 143A provides for penalising an Accused even before his guilt is established. Considering the drastic consequences of exercising the power Under Section 143A and that also before the finding of the guilt is recorded in the trial, the word "may" used in the provision cannot be construed as "shall". The provision will have to be held as a directory and not mandatory. Hence, we have no manner of doubt that the word "may" used in Section 143A, cannot be construed or interpreted as "shall". Therefore, the power Under Sub-section (1) of Section 143A is discretionary.

15. Even Sub-section (1) of Section 148 uses the word "may". In the case of Surinder Singh Deswal v. Virender Gandhi   MANU/SC/0793/2019 : 2019:INSC:688 : 2019:INSC:688 : (2019) 11 SCC 341, this Court, after considering the provisions of Section 148, held that the word "may" used therein will have to be generally construed as "rule" or "shall". It was further observed that when the Appellate Court decides not to direct the deposit by the Accused, it must record the reasons. After considering the said decision in the case of Surinder Singh Deswal   MANU/SC/0793/2019 : 2019:INSC:688 : 2019:INSC:688 : (2019) 11 SCC 341, this Court, in the case of Jamboo Bhandari v. Madhya Pradesh State Industrial Development Corporation Limited and Ors. MANU/SC/1005/2023 : 2023:INSC:822 : (2023) 10 SCC 446, in paragraph 6, held thus:

6. What is held by this Court is that a purposive interpretation should be made of Section 148 NI Act. Hence, normally, the appellate court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the appellate court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the Appellant, exception can be made for the reasons specifically recorded.

(Emphasis added)

15.1. As held earlier, Section 143A can be invoked before the conviction of the Accused, and therefore, the word "may" used therein can never be construed as "shall". The tests applicable for the exercise of jurisdiction Under Sub-section (1) of Section 148 can never apply to the exercise of jurisdiction Under Sub-section (1) of Section 143A of the N.I. Act.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 741 of 2024

Decided On: 15.03.2024

Rakesh Ranjan Shrivastava Vs. The State of Jharkhand and Ors.

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka and Ujjal Bhuyan, JJ.

Author: Abhay Shreeniwas Oka, J.

Citation: MANU/SC/0204/2024,2024 SCC OnLine SC 309.

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Whether Magistrate must give reasons for grant of twenty percent interim compensation To Complainant In Cheque Dishonour Case?

Mr. Bhavin Suchak, the learned Counsel for the respondent/ complainant has rightly argued that, in fact, the trial Court has considered the judgment passed by this Court, in Ashwin's case (supra) and has in paragraph 6 reproduced that part of the order passed by this Court which deals with the probable considerations while passing interim order, which reads thus:

" 6...... Grant of interim compensation, would be at the discretion of the Court, based upon consideration of various factors, such as (a) whether the requirements of Section 138 of the N.I. Act were fulfilled, (b)whether the pleadings disclose the drawing of the presumption, (c) whether the proceedings were within limitation and, (d) whether prima facie a legal debt or liability was disclosed from the complaint or the notice of demand preceding it."

The trial Court has then noted that the complainant before it fulfills all the requirements as quoted under clause (a) to (d) above.{Para 7}

9. One of the reasons of introducing Section 143A of the N.I. Act, by amending Act of 20 of 2018 is to curtail delaying tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings and that the payee of dishonoured cheque has to spend considerable time and resources in court proceedings to realise the value of the cheque. The amendment was introduced with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. If this amendment is to be given effect to in its letter and spirit, in my considered view, once the factors enumerated in clauses (a) to (d) above are satisfied/ fulfilled, then those are reasons enough and thus case for awarding interim compensation exists. In such circumstances, the learned Magistrate will be fully justified in awarding 20% interim compensation. To expect the learned Magistrate to assign additional reasons, in a way, will defeat the amendment for the reason that every order passed under Section 143A will then be challenged on the ground that there are no additional reasons assigned by the learned Magistrate and if additional reasons are assigned, the challenge will be that the reasons assigned are not adequate etc. thereby opening flood-gates of litigations. However, to reduce the interim compensation, additional reasons may be necessary indicating why it was being so done. 

10. The interim compensation is granted at a stage of the proceedings where the accused pleads not guilty to the charges. Thus, despite the requirements in clause (a) to (d) above being fulfilled, if the accused pleads not guilty, to not award interim compensation @ 20% of the cheque amount will only defeat the intent of Sec. 143A. To my mind, it is only in case of doubt as regards fulfillment of any requirement under clause (a) to (d) above, the learned Magistrate may reduce the interim compensation below 20% of the cheque, or not grant it at all.

 IN THE HIGH COURT OF BOMBAY (NAGPUR BENCH)

Criminal Writ Petition No. 83/2023

Decided On: 21.09.2023

Guljama Shah Jahir Shah  Vs. Shri Sadguru Kaka Stone Crusher

Hon'ble Judges/Coram:

Anil L. Pansare, J.

Citation:  MANU/MH/3896/2023.

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Whether magistrate can direct accused to pay interim compensation to complainant in cheque dishonour before he pleads not guilty to charge?

It was argued in sum that the stage for making such an order

would arise only when the accused is not guilty to the accusation

in the complaint.

As is evident from plain reading of Section 143A (1)(a), it is only where the accused “pleads not guilty” of the accusation made in the complaint that interim compensation under Section 143A (1) can be granted. In the present case, the Magistrate did not issue the order after the plea of the accused was entered, but before that i.e. after he answered the summons. The parties counsels were present at an intermediate stage of proceedings, but before the plea of “not gulity” was entered.

In these circumstances, clearly there is an infraction of

Section 143A (1). The order dated 24.05.2022 made by the Chief Judicial Magistrate, Gautam Budh Nagar, U.P. in Complaint No. 50/2021 cannot therefore be sustained and is hereby quashed.

 IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CRIMINAL APPEAL No. 1807 / 2023

PAWAN BHASIN Vs  STATE OF U.P. & ANR. 

Dated: 07TH JULY 2023.

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Is the Company's Authorized Signatory, as the Drawer of a Cheque, Liable to Pay Interim Compensation U/S 143A of the NI Act?

 For the reasons stated above questions framed above are answered as below:-

(i) The signatory of the cheque, authorized by the "Company", is not the drawer in terms of section 143A of the NI Act and cannot be directed to pay interim compensation under section 143A.

(ii) In an appeal under section 148 of NI Act filed by persons other than "drawer" against the conviction under section 138 of the NI Act, a deposit of a minimum sum of 20% of the fine or compensation is not necessary.

However, in an appeal filed by persons other than "drawer" against the conviction under section 138 of the NI Act such power to direct deposit of compensation is available with the Appellate Court while suspending sentence under section 389 of code of criminal procedure. {Para 51}

IN THE HIGH COURT OF BOMBAY

Criminal Application No. 886 of 2022, 

Decided On: 08.03.2023

Lyka Labs Limited and Ors.  Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Amit B. Borkar, J.

Citation: MANU/MH/0799/2023,2023 Lawweb (Bom HC ) 19.

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Should the court consider the accused's conduct while deciding application for granting interim compensation for a cheque dishonour case?

Application of mind and passing of a reasoned order of grant of compensation becomes necessary in the light of penal consequences that ensue an accused who failed to comply with the order granting 20% compensation as the complainant is given several remedies of recovery which result in the accused being taken into custody. Therefore, such orders which result in such penal consequences should be rendered giving cogent reasons which would demonstrate application of mind and such orders should be passed only after hearing the accused in the matter. In cases where the learned Magistrate is to exercise discretion, such discretion should become two fold.

First fold: Where an application is so made, the learned Magistrate has to apply his mind whether such an application is to be considered at all, as every application that is made need not result in grant of 20% interim compensation Several factors need be gone into for considering such applications bearing in mind the reason and backdrop of the amendment. As quoted herein-above the bedrock of the amendment was to stall unscrupulous drawers of cheques drawing proceedings with frivolous applications, absenting themselves, seeking continuous adjournments causing delay and grave prejudice to the case of the complainants. In these factors, the learned Magistrate after analyzing the conduct of the accused should grant compensation which would vary from 1% to 20% after recording reasons.

In a given case if the accused is cooperating with the trial without seeking any unnecessary adjournments, not absenting himself or his counsel on any date and cooperating with the conclusion of the trial in such cases, the learned Magistrate will have to apply his mind, exercise his discretion as to whether such applications should he entertained at all. Therefore, it forms two classes of litigants. One who would cooperate with the proceedings and the other who would not. In cases where there is complete co-operation from the hands of the accused in the trial, the Court may consider whether interim compensation has to be granted at all and in cases where there is no cooperation on the part of the accused, the Court may proceed to consider the application.

Second fold: The second fold of discretion in any given case, the compensation may vary from 1% to 20%. It is nowhere depicted in the statute that the amount of interim compensation should be of a particular figure. It can vary from 1% to 20%. It is this variance that gives the learned Magistrate power to exercise discretion to grant such compensation. The mandate of the statute is that it should not exceed 20%. In the cases where learned Magistrate proceeds to grant compensation, has to bear in mind the amount involved in the instrument, as certain transactions would run to several cores and the accused may have formidable defence against the complainant. In such cases, the learned Magistrate should exercise discretion in a cautious manner. Here again the conduct of the accused should be noticed. Therefore, the aforesaid two fold discretion is sine qua non for an order to be passed by the learned Magistrate while considering the application under Section 143A of the Act. {Para 16}

 In the High Court of Karnataka

(Before M. Nagaprasanna, J.)

V. Krishnamurthy Vs Diary Classic ICE Creams Pvt. Ltd.,

Criminal Petition No. 632 of 2022

Decided on June 1, 2022

Citation: 2022 SCC OnLine Kar 1047

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In an appeal against eviction decree under The Transfer of Property Act court should give interim compensation from which date?

This now only leaves me to decide that in the facts of the present case what would be the date from which interim compensation ought to have been awarded by the Appellate Authority. As mentioned earlier, section 106 of the Transfer of Property Act, 1882 clearly stipulates that in the absence of a contract or local law or usage to the contrary, the lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year terminable on the part of the lessor or the lessee by six months' notice. A lease of immovable property for any other purpose shall be terminable on the part of either the lessor or the lessee by 15 days' notice. In the facts of the present case, it is the case of the Plaintiff that an open plot of land was leased to the Defendant which was not leased out for any agricultural or manufacturing purposes. This being the case, at least prima facie, the possession and occupation of the suit premises by the Defendant would be unlawful on the expiry of 15 days from the date of the termination notice (viz. 9th January, 2012). In other words, the possession and occupation of the Defendant would be wrongful from 25th January, 2012. This being the case, I am of the view that the compensation that ought to have been fixed by the Appellate Authority of Rs.1,50,000/- per month, should have been from 1st February, 2012 till the disposal of the Appeal.

 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

B. P. COLABAWALLA, J.

Mr. Mujibur Rehman Haji Israr Alam Siddiqui Vs. M/s. K. T. Kubal and Co.

Writ Petition No.80 of 2017

14th July, 2017.

Citation: 2018(2) ALL MR 267,2017(6) BOM.CR.382

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How should Appellate court calculate interim compensation when staying eviction decree if vacant land was rented on which tenant has raised construction?

 So far as the question of compensation is concerned, Mr. Naidu is right that it cannot be based on the valuation of the building ‘Garment House’. After all, what was leased out was the land; the construction on the land, if any, made during the subsistence of the tenancy, was to belong to the lessee. Compensation can accordingly be based only on the value of the land, the fruits of which may be said to be lost unto the Plaintiffs as a result of the stay of the eviction decree obtained by them. There is another way of looking at the land value. The land may well be commercially exploited either by retaining the structure (since the terms of the lease permit such retention upon payment) or, alternatively, by demolishing the existing structure and constructing on the land. In either case, the landlord would have to incur capital cost by purchasing the building or paying for the new construction. In either premises, commercial letting of constructed premises cannot be the basis of valuation; it would have to be letting of land.{Para 8}

13 The only legitimate basis for working out interim compensation in our case appears to be the actual price paid for the suit property (i.e. essentially the land) by Respondent No.19. Respondent No.19 has acquired reversionary right of the lessors in the suit property for a sum of Rs.5.50 crores. Evidently, this has been a concrete deal at arms length between men of commerce; it does take into account or, at any rate, must be presumed to have taken into account, all aspects arising out of the lessee’s right to the existing structure at the expiry of the lease. It may safely, at least for our purposes, which, as we have seen above, in any event, involve a certain ad-hocism, be taken as the basis for working out a fair interim compensation.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION NO.357 OF 2017

Vijay Anant Gangan   Vs  Zenabibi Gulam Rasool And Others 

CORAM : S.C. GUPTE, J.

PRONOUNCED ON : 5 NOVEMBER 2020

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Whether court can grant interim compensation as per O 15A of CPC(Maharashtra amendment) without ascertaining the agreed rate of rent between the parties?

A plain reading of the aforesaid provision would make it manifest that for application of the Order XV-A, it must be a suit by a lessor or a licensor against a lessee or a licensee. In the present case, the respondents did not approach the trial Court with a case that they are lessors. They did not state the rate of rent agreed between the parties. They did not assert that the tenancy of the petitioner was attorned in their favour. They are the purchasers of the house property and as such the earlier existing tenancy would stand attorned if the appropriate communication is made to the tenant. The case of the respondents is that the petitioner has encroached over one of the room and had occupied another room by consent of the previous owner. The provision of Order XV-A would come into play only when there is prima facie evidence to show that the rent or licence fees was agreed between the parties and a particular sum could be charged as a liability. 

12. These observations of the trial Court would show that the trial Court was unmindful to the pleadings of the parties. The respondents/plaintiffs were not praying that the defendant shall be directed to deposit Rs. 36,000/- towards arrears of rent. What they prayed was that amount of compensation and damages for use and occupation of the premises shall be directed to be deposited. It was necessary for the trial Court to first determine, prima facie, whether there exists relationship of lessor and lessee between the parties and then to determine quantum of rent agreed between them. Without undertaking such exercise, the trial Court proceeded to assume that amount of Rs. 36,000/- is due from the petitioner. As a matter of fact, the impugned order is so harsh that it practically amounts to granting of peremptory decree although impliedly. I am of the opinion that the impugned order is perverse, arbitrary and untenable.

 Bombay High Court

Radheshyam vs Tuljaprasad And Ors. on 17 October, 2006

Equivalent citations: AIR 2007 Bom 83

Bench: V Kingaonkar

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Whether appellate court can refuse to admit appeal in cheque dishonour case if convict fails to deposit interim compensation directed by it?

 Section 374 Cr.P.C. as reproduced above does not prescribe any condition for admission of an appeal. In other words, the provisions of the statute which vests a convict with a valuable right to challenge his conviction are not circumscribed by any conditions. Nor does any provision of the Negotiable Instruments Act, 1881 refer to any pre-condition for availing a valuable right of first appeal. Section 148 of the Act just vests the Appellate Court with the power to direct the appellant to deposit an amount not less than 20% of the compensation amount but under no circumstances the same can be interpreted to be a condition pre-requisite for availing the right of appeal. Imposition of any condition at the time of suspending of sentence may be a different matter and the trial Court may in its wisdom, impose such a condition failing which the order suspending sentence may be vacated. In other words, his bail during the pendency of appeal may be cancelled upon failure of the appellant to comply with the direction of deposit of such amount as may have been directed by the Appellate Court.

As an upshot of the discussion made above, all the aforesaid three petitions are accepted in the following terms:

(i) The condition made in the impugned orders wherein the

admission of appeal has been made subject to deposit of 20% of

the compensation amount is set aside and it is ordered that the

appeals shall stand admitted before the lower Appellate Court.

The petitioners are, however, directed to deposit an amount

equivalent to 20% of the amount of compensation awarded by

the trial Court within 60 days from today.

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH.

( I ) CRM-M-15131-2020 (O&M)

Sudarshan Kumar Vs Manish Manchanda

Date of decision : 15.12.2020

CORAM : Hon'ble Mr. Justice Gurvinder Singh Gill

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Can the court fix interim compensation based on the tenanted property's purchase price while staying eviction decree?

The only legitimate basis for working out interim compensation in our case appears to be the actual price paid for the suit property (i.e. essentially the land) by Respondent No. 19. Respondent No. 19 has acquired reversionary right of the lessors in the suit property for a sum of Rs. 5.50 crores. Evidently, this has been a concrete deal at arms length between men of commerce; it does take into account or, at any rate, must be presumed to have taken into account, all aspects arising out of the lessee's right to the existing structure at the expiry of the lease. It may safely, at least for our purposes, which, as we have seen above, in any event, involve a certain ad-hocism, be taken as the basis for working out a fair interim compensation. Indeed, it is even Mr. Naidu's submission that interim compensation may be premised on this valuation. In his submission, Mr. Naidu has worked out fair return of Rs. 2,56,654 per month (for 4354 sq. yds., i.e. excluding the land appurtenant and below the two chawl like structures) by estimating return at 6.5 per cent per annum on the price paid by Respondent No. 19 (Rs. 5.50 crores). Mr. Naidu, however, terms this amount of Rs. 2,56,654 to be exorbitant, without telling us why. (He probably contends so in the light of the judgments of Atma Ram Properties and Previn Govind Sharma, supra.) Mr. Naidu suggests 50 per cent of this amount (i.e. Rs. 1,28,327/- per month) as a fair return on investment for fixing interim compensation.

14. There is no basis for reducing the amount of fair return to 50 per cent as suggested by Mr. Naidu. The amount is not exorbitant per se and cannot be said to be so on the basis of the cases of Atma Ram Properties and Previn Govind Sharma. As I have noted above, the multipliers in Atma Ram Properties and Previn Govind Sharma are not benchmarks to be used as precedents for fixing compensation generally. In the peculiar facts of our case, it is this return (Rs. 2,56,654/- per month) which may be termed as a fair return on investment, which the eventually successful party may be said to have lost as a result of the stay on eviction and which may be taken as a reasonable compensation to be fixed during the pendency of the CRA as a condition of the stay. There may, at best, be a case for rounding it off to Rs. 2,50,000/- per month.

 IN THE HIGH COURT OF BOMBAY

Civil Revision Application No. 357 of 2017

Decided On: 05.11.2020

 Vijay Anant Gangan  Vs.  Zenabibi Gulam Rasool and Ors.

Hon'ble Judges/Coram:

S.C. Gupte, J.

Citation: MANU/MH/1877/2020

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Whether special court under Pocso Act can give further interim compensation to the victim on change of circumstances considering her additional need?

It is material to note that in the present case the learned ASJ had by an order dated 14.09.2018 directed that interim compensation of ` 50,000/- be paid to each of the victims under the Delhi Victim Compensation Scheme, 2015. A plain reading of the said order indicates that the learned ASJ had examined the facts and circumstances of the case including the financial condition of the victims as well as the trauma caused to them. The petitioner had accepted the said order and had not sought enhancement of the interim compensation at the material time. The said order had become final and was duly implemented. In the given circumstances, the question to be addressed is whether it is open for the petitioner to file another application for seeking further interim compensation.

24. Although Sub Rule (1) of Rule 7 of the said Rules (and in Sub-rule (1) of Rule 9 of the Protection of Children from Sexual Offences Rules, 2020) does not indicate that multiple applications for interim compensation can be made; nonetheless, since the said provision for compensation is a beneficial provision, the same must be considered liberally.

25. This Court is of the view that since there is no express bar which restricts the Special Courts to grant interim compensation only once, an application for further interim compensation can be considered by the Learned. ASJ, provided there are sufficient grounds for seeking further interim compensation. Needless to state that any further interim compensation awarded would also be liable to be adjusted with the compensation as awarded at the final stage as postulated in Sub-rule (1) of Rule 7 of the said Rules (and in Sub-rule (1) of Rule 9 of the Protection of Children from Sexual Offences Rules, 2020)

26. Having stated the above, it is also necessary to observe that an application for seeking further interim compensation cannot be premised on the ground that the order for payment of interim compensation passed in an earlier application is erroneous or inadequate. Such an application would be maintainable only if circumstances have subsequently arisen that were not in contemplation at the time when the special court had evaluated the requirement of interim compensation.

IN THE HIGH COURT OF DELHI

W.P. (Crl.) 3244/2019

Decided On: 15.06.2020

 Mother Minor Victim No. 1 & 2  Vs.  State and Ors.

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Delhi HC: Special Judge under Pocso Act, not DLSA should direct payment of interim compensation to a child victim

 It is well settled that every statutory power is also coupled with the duty to exercise it. In view of the express provisions of Section 33(8) of the POCSO Act and Rule 7 of the said Rules (Rule 9 of the Protection of Children from Sexual Offences Rules, 2020 as is currently in force), the duty to award compensation in appropriate cases has been conferred on the Special Court and therefore, it is incumbent on the Special Court to pass necessary orders for compensation/interim compensation in appropriate cases. It is not open for the Special Court to delegate the said power and direct the concerned Legal Services Authority to examine any claim for compensation payable to a minor victim of an offence punishable under the POCSO Act. In this view, this Court finds considerable merit in the contention that the learned ASJ could not have directed the petitioner's application for further compensation to be considered by DLSA. It was incumbent upon the learned ASJ to examine the petitioner's application for additional compensation to the victims and pass necessary orders, if the Trial Court found the application to be merited.{para 21}

 In view of the above, this Court finds no infirmity with the order dated 22.07.2019 passed by DLSA, holding that under the POCSO Act, the special court has the jurisdiction to award compensation to victims of offences punishable under the POCSO Act. However, as stated earlier, the impugned order dated 01.06.2019 passed by the learned ASJ, referring the petitioner's application for further compensation, is without authority of law and is thus, set aside.

IN THE HIGH COURT OF DELHI

W.P. (Crl.) 3244/2019

Decided On: 15.06.2020

 Mother Minor Victim No. 1 & 2  Vs.  State and Ors.

Hon'ble Judges/Coram:

Vibhu Bakhru, J.

Citation: MANU/DE/1240/2020

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Whether the court must direct accused to pay interim compensation to complainant as per S 143A of NI Act?

The next question that arises for consideration is the manner in which this provision is to be put into operation in the pending proceedings. It will be relevant to extract Section 143A(1) as follows:

"143A.(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, the Court trying 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."

7. A reading of the above provision makes it clear that the Court trying an offence under Section 138 of the Negotiable Instruments Act "may" (emphasis supplied) order the drawer of the cheque to pay interim compensation to the complainant. The provision itself shows that the discretion is vested with the Trial Court to direct interim compensation to be paid by the complainant. It is not necessary that in all cases, the trial Court must necessarily direct the complainant to pay interim compensation and such a direction should be given only on a case to case basis, by taking into consideration the facts of each case. The legislature has intentionally not used the word "shall", since it would have prevented the accused persons, even in genuine cases, from defending themselves without paying 20% as interim compensation amount to the complainant. This would have directly affected the fundamental right of an accused person to defend himself in a criminal case. This is the reason why the legislature had thoughtfully used the word "may" under Section 143A(1) of the Negotiable Instruments Act. Therefore, it is not possible to read the word "shall" into the word "may" which is used in the provision.

8. In view of the above finding, the word "may", gives the discretion to the Trial Court to direct the accused to pay interim compensation to the complainant. The exercise of discretion must always be supported by reasons, failing which the exercise of discretion will become arbitrary.

IN THE HIGH COURT OF MADRAS

Crl. O.P. Nos. 15438, 15440 of 2019 and Crl. M.P. Nos. 7576, 7578 of 2019

Decided On: 12.07.2019

L.G.R. Enterprises  Vs.  P. Anbazhagan

Hon'ble Judges/Coram:

N. Anand Venkatesh, J.

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Whether appellate court should determine mesne profits for determining interim compensation while staying eviction decree?

 If this Court indulges in a threadbare analysis and judicially

determines the relative merits of the rival mesne profits reports at an

interlocutory stage—more so under Order 41, Rule 5 of CPC—that

preempts the trial Court’s legitimate adjudicatory powers under Order

20, Rule 12 of CPC. Here, what this Court intends, or requires, to do is

to use the “commonsense which is a cluster of life's experiences” rather

than depend on the rival facts presented by warring litigants.”

(g) Pragmatic Pursuit:

32. Indeed, any adjudication, if it were, under Order 41, Rule 5

of CPC involves an element of ad hocism, a permissible level of guess

work, and a dose of discretion. That provision is a step-in-aid in appeal

proceedings; it tries to keep both the rivals in the litigation on an even

keel. One has the reality of a decree; the other a possibility of its

reversal. The decree, say in an eviction suit, alters the characters of

parties. The tenant is no longer a tenant; he is, at best, an occupant.

And that occupation stands branded as unauthorised. The suspension

of the decree does not obliterate the judicial findings; it only keeps its

effect—its execution—at bay. So to have the legitimate judicial dictum

put on hold in the name of stay, the appellant needs to submit himself

to certain terms. The terms of, for example, paying monetary

compensation. A stay is not for mere asking. Nor can the appellant

paint himself a victim under Order 41, Rule 5 of CPC. That said, I

must also acknowledge that the appellate courts will not lose sight of

the distinction between what is ideal and what is practical; what is

discretionary and what is arbitrary; what is a fair guess and what is a

wild whim.

33. With judicial overload, docket explosion, and clogging

adjudicatory avenues at every echelon, we cannot expect a mini-trial

even under Order 41, Rule 5 of CPC, for fixing, say, an interim

compensation. It is ideal. But with the litigious multitude knocking at

the court’s doors clamouring for speedy justice, it is an unaffordable

legal luxury.

34. Here, in the revision, the appellant cannot insist on

reappreciation of his case on merits. This Court can only examine the

jurisdictional errors, if any, committed by the Appellate Bench.

Therefore, the tenant seeking to stall the execution of a decree from a

final court of fact has more burden to bear.

(h) The Result:

35. So, I reckon this Court’s interim arrangement needs no

interference, for this adjudication under Order 41, Rule 5 of CPC has no trappings of a judicial determination of mesne profits under Order

20, Rule 12 of CPC. The tenant will continue to pay Rs.25,000/- per

month to have the decree stayed, and the eviction stalled. Between the

two extremes of Rs.71,500/- per month and Rs.12,846/-, as projected

by the landlords and tenant respectively, my altering the figure

Rs.25,000/- can be nothing more than a cosmetic consideration. This

interim arraignment does not prevent the landlords from invoking

Order 20, Rule 12 of CPC. In that event, both the rival contenders can

invite a reasoned order from the trial Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

CIVIL REVISION APPLICATION (ST.) NO.33250 OF 2018

Previn Govind Sharma Vs  Dinyar Jal Jamshedji

CORAM : DAMA SESHADRI NAIDU, J.

DATE : 21st JUNE 2019.

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Bombay HC: Scope of inquiry for grant on interim compensation while granting stay to eviction decree

This Court in Previn Govind Sharma v. Dinyar Jal Jamshedji  Decided on 21st June 2019 has

considered the issue in detail. After examining the above decisions besides others, it

has held that this Court under Order 41, Rule 5 CPC does not fix mesne profits per

se. If this Court indulges in a threadbare analysis and judicially determines the

relative merits of the rival mesne profits reports at an interlocutory stage—more so

under Order 41, Rule 5 of CPC—that preempts the trial Court’s legitimate

adjudicatory powers under Order 20, Rule 12 of CPC. Here, what this Court

intends, or requires, to do is to use the “commonsense which is a cluster of life's

experiences” rather than depend on the rival facts presented by warring litigants.”

Pragmatic Pursuit:

29. Then, Previn Govind Sharma has recorded what could be a pragmatic

approach. Indeed, any adjudication, if it were, under Order 41, Rule 5 of CPC

involves an element of ad hocism, a permissible level of guesswork, and a dose of

discretion. The interim compensation, I may note, is to ensure that neither party

gets an unfair advantage over the other. Either too high an amount or too low an

amount as compensation prejudices one or the other party. The whole endeavour

under Order 41, Rule 5 of CPC is to keep the rival parties on an even keel. It is a

balancing act between the competing interests of a party who secured a decree and a

party who entertains the hope of emerging successful in the appeal proceedings.

30. Order 41, Rule 5, we may note, is a step-in-aid in appeal. The respondent

has the reality of decree; the appellant the possibility of its reversal. The decree, say  in an eviction suit, alters the characters of parties. The tenant is no longer a tenant;

he is, at best, an occupant. And that occupation stands branded as unauthorised.

The suspension of the decree does not obliterate the judicial findings; it only keeps

its effect—its execution—at bay. So to have a binding decision put on hold in the

name of stay, the appellant needs to submit himself to certain terms. The terms of,

for example, paying monetary compensation.

31. If we continue in the same vein, a stay is not for mere asking. Nor can the

appellant paint himself a victim under Order 41, Rule 5 of CPC. That said, I must

also acknowledge that the appellate courts will not lose sight of the distinction

between what is ideal and what is practical; what is discretionary and what is

arbitrary; what is a fair guess and what is a wild whim.

32. With the judicial overload, docket explosion, and clogging adjudicatory

avenues at every echelon, we cannot expect a minitrial even under Order 41, Rule 5

of CPC, for fixing, say, an interim compensation. It is ideal. But with the litigious

multitude knocking at the court’s doors clamouring for speedy justice, it is an

unaffordable legal luxury.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION

WRIT PETITION NO.13100 OF 2018

Ishwarlal Vrajlal Mistry vs.  Manohar U. Shetty

CORAM: DAMA SESHADRI NAIDU, J.

JUDGMENT DATE: 18th December 2019

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Bom HC: Magistrate can make order U/ S. 143-A of NI Act even when plea of not guilty recorded by Advocate and not by accused himself

 It is the case of the petitioner that, summons was issued to the accused returnable on 11.12.2018 The summons was served upon the accused on or about 01.11.2018 The petitioner, owing to unavailability of a confirmed travel ticket was unable to travel from Gurgaon to Mumbai and attend the Trial Court on 11.12.2018 but instructed an advocate to attend the proceedings and take appropriate steps in the interest of the petitioner. The advocate of the petitioner appeared before the Trial Court on 11.12.2018 and presented an application for personal exemption of the petitioner. The learned Magistrate passed a conditional order thereby allowing the exemption application on a condition that the Advocate for the accused shall record plea on behalf of the accused and if the advocate is pleading not guilty then the accused shall secure his presence for bail and deposit 20% of the cheque amount as interim compensation within 60 days from the date of the order. It is further stated that, the impugned order dated 11.12.2018 is passed by the learned Magistrate in exercise of his powers under Section 143A of the said Act, inserted by the Negotiable Instruments (Amendment) Act, 2018. The section 143A of the said Act empowers the Magistrate to order the accused to deposit 20% of the cheque amount as interim compensation in a summons case when the accused pleads not guilty to the accusations made in the complaint. It is pertinent to note that the Section 143A of the said Act, does not contemplate recording plea of accused through his pleader. The provision of section 143A of the said Act, also does not allow the learned Magistrate to order deposit of interim compensation as a conditional order. More particularly, such order under Section 143A of the said Act, cannot be passed on an application preferred on behalf of the accused seeking exemption from personal appearance before the Court. Hence the present writ petition.

 Therefore, keeping in view the mandate of Section 143 of the said Act and also judgment of Hon'ble Supreme Court in the case of Indian Bank Association(supra), the learned Metropolitan Magistrate was right in passing the impugned order. Prima facie it appears that the petitioner is trying to delay the proceedings pending before the learned Metropolitan Magistrate. In that view of the matter no case is made out to cause interference in the impugned order. Hence, petition stands rejected.

In the High Court of Bombay

(Before S.S Shinde, J.)

Sidharth Chauhan  v.  Aditya Birla Real Estate Fund 

Criminal Writ Petition No. 762 of 2019

Decided on July 19, 2019, 

Citation: 2019 SCC OnLine Bom 1297,2020(1) MHLJ 277

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