TaxTMI 
TaxTMI 
2022 (10) TMI 1068
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....d cheques, when presented before the banker for their encashment, were dishonoured for the reasons insufficiency of funds/ payees name required/account frozen by virtue of six separate memos of dishonour. The respondent/ complainant thereafter served a notice of demand for payment of total amount of Rs.26.50 lacs, which was sent through registered post on 10th May, 2019. Even after waiting for the prescribed period, the petitioner/ accused did not pay the cheque amount to the respondent/complainant, as a result whereof the impugned complaint came to be filed before the learned trial Magistrate. 3) Vide order dated 25.06.2019, the learned trial Magistrate issued process against the petitioner. After recording his plea, another order came to be passed by the learned trial Magistrate on 23.07.2021/29.07.2021, whereby interim compensation in terms of Section 143-A of the NI Act to the extent of 20% of the total cheque amount was awarded in favour of the respondent. 4) The petitioner has thrown challenge to the complaint as well as the orders dated 25.06.2019 and 23.07.2021/29.07.2021 by urging several grounds. It has been contended that some of the cheques, which are subject matter o....
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....no dispute about the validity of other four cheques which are subject matter of the impugned complaint. 10) The question that falls for determination is as to what would be the effect on the fate of the prosecution under Section 138 of NI Act in a case where one of the several cheques which are subject matter of the complaint had become stale. For finding an answer to this question, we need to analyze the facts relevant to the instant case. 11) The respondent/complainant has launched prosecution for offence under Section 138 of NI Act by filing a single complaint against the petitioner/accused in respect of six dishonoured cheques. As per the provisions contained in Section 138 of the NI Act, in order to constitute an offence under the said provision, it has to be shown that the accused has drawn a cheque in favour of the complainant on an account maintained by him for discharge of any debt or other liability. Secondly, the said cheque must have been returned unpaid, either because of the amount of money standing to the credit of the account of the accused is insufficient to honour the cheque or it exceeds the amount arranged to be paid. It has to be further shown that the cheque....
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...., it does not make the whole complaint false nor does it defeat the cause of action that has arisen in favour of the respondent/ complainant against the petitioner/accused. Thus, merely because one of the cheques, which is subject matter of the impugned complaint, had become stale before its presentation for encashment would not offer a ground for quashment of the impugned complaint as a whole. However, the impugned complaint has to be restricted only to the cheques that were valid as on the date of their presentation for encashment. This aspect of the matter has to be borne in mind by the learned trial Magistrate while trying the complaint. 15) The second ground that has been urged by learned counsel for the petitioner is regarding validity of order dated 23.07.2021/29.07.2021. It has been contended by learned counsel for the petitioner that on 23.07.2021, the learned Presiding Officer was on leave and, as such, the fact that order bears the date 23.07.2021 shows not only non-application of mind but it also smacks of tampering of the record. 16) A perusal of the minutes of the proceedings reveals that on 07.07.2021, the learned Presiding Officer heard the arguments on the applic....
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....ys 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. (5) The interim compensation payable under this section may be recovered as if it were a fine under section 421 of the Code of Criminal Procedure, 1973 (2 of 1974). (6) The amount of fine imposed under section 138 or the amount of compensation awarded under section 357 of the Code of Criminal Procedure, 1973 (2 of 1974), shall be reduced by the amount paid or recovered as interim compensation under this section. 19) A bare perusal of the aforesaid provision makes it clear that a Court trying a complaint for offence under Section 138 of NI Act has discretion to order the drawer of the cheque to pay interim compensation to the complainant. This amount of compensation has not to exceed 20% of the amount of the cheque. Thus, grant of interim compensation is a discretionary power which has to be exercised by a Magistrate trying a complaint under Section 138 of NI Act and such order has to be based on reason and logic. 20) Although no guidelines for grant of interim compensation have been laid down in Section 143-A of....