JISHA Vs. STATE OF KERALA

JUDGEMENT

(1.) This petition is filed under Section 482 Cr.P.C, seeking to quash an order passed by the Judicial First Class Magistrate Court I, Muvattupuzha on 8.3.2019 in C.M.P.No.316/2019 in S.T.No.3531/2018, a copy of which is produced alongwith as Annexure A4. C.M.P.No.316/2019 is a petition filed by the complainant under Section 143A of the Negotiable Instruments Act, 1881 (for short 'the N.I Act'). S.T.No.3531/2018 is a prosecution launched by the 2nd respondent herein against the petitioner under Section 142 N.I Act alleging commission of offence punishable under Section 138 N.I Act. The complaint was launched in the year 2018. Annexure A4 order was passed, when the plea of the accused that he is not guilty of the offence was recorded by the court. The accused was directed to pay a sum of Rs.1,00,000/- as interim compensation to the complainant within 60 days from the date of the order (20% of Rs.5,00,000/-, the cheque amount). It is aggrieved by the said order, the accused has approached this Court in the captioned petition.

(2.) Sri.S.Sreedev advanced arguments on four points. The first and foremost argument of the learned counsel was centered on the second part of Article 20 (1) of the Constitution of India. The counsel has drawn this Court's attention to Article 20(1) of the Constitution of India to contend that a person shall not be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of commission of the offence by him. It is contended by the learned counsel that the direction of the court below to pay interim compensation amounts to penalty and therefore is hit by Article 20(1) of the Constitution.

(3.) Secondly it was contended by the learned counsel that Section 143A N.I Act can be invoked only against the drawer of the cheque. The learned counsel has invited this Court's attention to Section 7 N.I Act to contend that drawer means the maker of bill of exchange or cheque. According to him, the accused in the case on hand cannot be said to be a drawer of the cheque, since the issuance and execution of the cheque have been denied by him. Thirdly, the argument advanced was that eventhough the accused has filed objection to Crl.M.A. No.316/2019 before the court below, the contentions raised therein were not dealt with by the court in the impugned order. The contention fourthly raised was that the complainant has already obtained an order of attachment of immovable property of the accused from a civil court and therefore he cannot be directed to pay the interim compensation under Section 143A N.I Act. The learned counsel for the respondent Sri.Peeus Kottam has contended that none of the arguments advanced by the learned counsel for the petitioner is tenable. According to him what is directed to be paid by the impugned order is interim compensation and that cannot be treated at par with penalty. It is contended by the counsel that Section 143A of the Act does not contemplate filing of objection by the accused. Therefore, the court below is not bound to deal with the objections raised in the counter filed by the petitioner. It is also contended by the learned counsel that the order of attachment of immovable property, that stands in favour of the complainant will not takes away the power of the court to grant the interim relief by invoking jurisdiction under Section 143A N.I Act.