TaxTMI 
TaxTMI 
2024 (6) TMI 702
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....Act'), thereby dismissing the application filed by the petitioner herein under Section 143A of NI Act. Factual Matrix: 5. The petitioner herein has filed the abovementioned complaint against the respondent/accused, alleging that the respondent represented himself to be an official at Sena Bhawan, New Delhi, and offered the petitioner for running canteen on lease at the Sena Bhawan in partnership. It is alleged that the respondent further induced the petitioner by stating that his son and son-in-law would also be given employment there. It is alleged that in the month of April 2018, the respondent again offered employment for the daughter of the petitioner, her friends, and the friend of the petitioner's son-in-law. It is stated that on the above assurances, the respondent took a total sum of Rs.20 lacs from the petitioner. It is stated that thereafter, the respondent failed to get the lease/license and the abovementioned employment for the children and son-in-law of the petitioner. It is alleged that for the return of the money taken by the respondent for procuring the said employment, the respondent issued two cheques for an amount of Rs. 9.95 Lacs each in favour of ....
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.... in holding that there are no deliberate attempts by the accused till now to protract the trial. He submits that several times bailable warrants were issued against the respondent for securing his presence for adjudication of the complaint proceedings. Analysis & Findings: 12. I have considered the submission made by the learned counsel for the petitioner and have pursued the contents of the complainant as also the Impugned Order and other proceedings before the learned Trial Court. 13. Section 143A of the NI Act is reproduced herein below: "143A. Power to direct interim compensation. -(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. (2) The interim compensation under sub section (1) shall not exceed twenty per cent of the amount of the cheque. (3) The interim compensation shall be paid within sixty days from the ....
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....shall". But this is not an inflexible rule. The use of the word "may" in certain legislations can be construed as "shall", and the word "shall" can be construed as "may". It all depends on the nature of the power conferred by the relevant provision of the statute and the effect of the exercise of the power. The legislative intent also plays a role in the interpretation of such provisions. Even the context in which the word "may" has been used is also relevant. 12. The power under sub-section (1) of Section 143-A is to direct the payment of interim compensation in a summary trial or a summons case upon the recording of the plea of the accused that he was not guilty and, in other cases, upon framing of charge. As the maximum punishment under Section 138 of the NI Act is of imprisonment up to 2 years, in view of clause (w) read with clause (x) of Section 2 of the Code of Criminal Procedure, 1973 (for short "CrPC"), the cases under Section 138 of the NI Act are triable as summons cases. However, sub-section (1) of Section 143 provides that notwithstanding anything contained in CrPC, the learned Magistrate shall try the complaint by adopting a summary procedure under Sections 2....
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....nd of interim compensation by the complainant to the accused and as sub-section (5) provides for mode of recovery of the interim compensation, obviously for recovery of interim compensation from the complainant, the mode of recovery will be as provided in Section 421CrPC. It may be a long-drawn process involved for the recovery of the amount from the complainant. If the complainant has no assets, the recovery will be impossible. xxxx 18. In the case of Section 143-A, the power can be exercised even before the accused is held guilty. Sub-section (1) of Section 143-A 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% 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 ....
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....used is found to be prima facie a plausible defence, the court may exercise discretion in refusing to grant interim compensation. 24. 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 143-A, the Court must record brief reasons indicating consideration of all the relevant factors." (Emphasis supplied) 15. A reading of the above would show that the Supreme Court has clarified that the exercise of power under Section 143A (1) of the NI Act is 'discretionary'. It has also laid down the broad parameters for exercising the discretion under the said provision. 16. In the present case, the petitioner alleges that he has given an amount totalling to Rs.20 lacs to the respondent for the purpose of securing a lease/license for a canteen at Sena Bhawan by the respondent and securing employment of the petitioner's children, son- in-law, friend of his daughter, and a friend of his son-in-law at the said canteen. The respondent is stated to be working as....