High Court of KeralaSingle Judge2022-11-17CRL.M.C. Nos.8180/2022 and 8181/2022 dismissed;...

Hamza v. State of Kerala & Subair K.T.P.

Case / Petition Number:CRL.M.C. Nos. 8180/2022 and 8181/2022

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Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. BADHARUDEEN
Judgment Date: 2022-11-17
Court Decision / Holding: Orders impugned in both Crl.M.Cs are not interfered with; the petitions are dismissed; the 20% interim compensation deposit directions stand.
Final Disposition: CRL.M.C. Nos.8180/2022 and 8181/2022 dismissed; orders directing deposit under Section 143A upheld.

Parties to the Case

Appellants / Petitioners

Hamza

Respondents

State of Kerala
Subair K.T.P.

Legal Representation & Advocates

Counsels for Petitioners

• K.P. Sudheer
• J. Ramkumar

Counsels for Respondents

• Sri Renjit George, Sr. Public Prosecutor
• Sri G. Sudheer, Public Prosecutor

Case Synopsis & Summary

These two Criminal Miscellaneous Cases arise from orders of Judicial First Class Magistrate Court-IV, Kannur, directing Hamza (accused) to deposit 20% of the cheque amount as interim compensation under Section 143A of the Negotiable Instruments Act. The Kerala High Court, in a single-judge bench (Justice A. Badhurudeen) on 17 November 2022, examines whether the trial court’s directive to deposit interim compensation requires interference. The petitioner contends the 20% deposit is not mandatory; relying on apex court precedents such as Surinder Singh Deswal v. Virender Gandhi and subsequent Kerala decisions (Thomas v. State of Kerala; Jisha v. State of Kerala), they argue that the word “may” in the relevant provisions cannot be read as “shall,” and that a hearing prior to an interim order under Section 143A is not mandated. The respondents (State and Subair K.T.P.) counter that Section 143A, read with Section 148, authorises the court to direct interim compensation and to ensure payment, with a permissible ceiling of 20% of the cheque amount; such orders are within the trial court’s power and are intended to protect the complainant’s interests. The court binds itself to the apex court’s ratio (Article 141) and, after considering the cited authorities, holds that the trial court’s direction to deposit 20% is within its power and not deserving of interference. Consequently, the petitions are dismissed, leaving the impugned orders intact.

Provisions of Law Cited

Section 143(1) read with (2) of the Negotiable Instruments ActSection 143A of the NI ActSection 148 of the NI ActSection 142 of the NI Act

Submissions & Arguments

Contentions of Appellants / Petitioners

The applicants submit that the 20% interim compensation under Section 143A is discretionary and not mandatory. Relying on the Apex Court's Surinder Singh Deswal decision (2019) and subsequent Kerala decisions (Thomas v. State of Kerala; Jisha v. State of Kerala), they argue that the word 'may' should not be read as 'shall' in Section 148, and that 143A does not compel a hearing or coercive payment prior to trial. They urge quashing Annexure A3 orders as contrary to the ratio of Supreme Court jurisprudence and Article 141 of the Constitution. The argument emphasizes due process, the discretionary nature of interim measures, and the absence of a mandatory hearing prior to ordering interim compensation.

Contentions of Respondents

The respondents contend that Section 143A, read with Section 148, empowers the court to direct interim compensation up to 20% of the cheque amount to secure payment to the complainant and that such directions are within the trial court’s statutory authority. They argue that the law aims to protect victims and ensure prompt relief, and that the appellate and trial courts have concurrent power to direct deposits. They rely on binding precedents to uphold the orders and contend that no interference is warranted, as the statutory scheme contemplates interim relief while the main proceedings continue.

Cited Precedents (3)

Case Name	Citation	Treatment	Explanation
Surinder Singh Deswal @ Col. S.S.Deswal & Ors. v. Virender Gandhi	2019 (3) KHC 355	Positive	Apex Court held that interpreting 'may' in Section 148 NI Act as 'shall' is not correct; the High Court follows this ratio while dealing with 143A/148 interplay.
Thomas v. State of Kerala & anr.	2020 (1) Crimes(HC) 582	Positive	Cited to show that the court has followed the ratio relating to interim compensation under Section 143A.
Jisha v. State of Kerala and Another	2019 (4) KLT 558	Positive	Held that Section 143A contemplates suo motu order by the court; no pre-issue hearing is mandated; used to support non-hearing of the accused before interim orders.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022/26TH KARTHIKA,** ## **1944** **CRL.MC NO.8180 OF 2022** **AGAINST THE ORDER/JUDGMENT DATED 01.08.2022 IN CMP NO.354/2022 IN S.T.C No.101/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS-IV, KANNUR** ## **PETITIONER/ACCUSED:** HAMZA, AGED 65 YEARS, S/O.KUNHIMOIDEEN KUTTY, VALIYAPARAMBIL HOUSE, KOLATHOOR AMSOM DESOM, KOLATHOOR P.O., MALAPPURAM DISTRICT, PIN – 679338. BY ADVS. K.P.SUDHEER J.RAMKUMAR ## **RESPONDENTS/STATE & DEFACT COMPLAINANT:** 1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 682031. 2 SUBAIR K.T.P., AGED 53 YEARS, S/O.ABDUL KHADER, K.T.P.HOUSE, PAPPINISSERY WEST P.O., KANNUR DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ABDUL MAJEED, S/O.VATTAPARAMBIL MOIDEEN, KALPAKANCHERY AMSOM DESOM, KALPAKANCHERY P.O., TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676555. BY ADV. SRI.RENJIT GEORGE, SR.PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.11.2022, ALONG WITH CRL.M.C.NO.8181/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: **Crl.M.C. Nos.8180 & 8181 of 2022** 2 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 17[TH] DAY OF NOVEMBER 2022/26TH KARTHIKA, 1944 CRL.MC NO.8181 OF 2022** **AGAINST THE ORDER/JUDGMENT DATED 01.08.2022 IN CMP NO.355/2022 IN S.T.C.No.102/2022 OF JUDICIAL MAGISTRATE OF FIRST CLASS -IV, KANNUR** ## **PETITIONER/S:** HAMZA, AGED 65 YEARS, S/O.KUNHIMOIDEEN KUTTY, VALIYAPARAMBIL HOUSE, KOLATHOOR AMSOM DESOM, KOLATHOOR P.O., MALAPPURAM DISTRICT, PIN – 679338. BY ADVS. K.P.SUDHEER J.RAMKUMAR ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY ITS PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM, KOCHI – 682031. 2 SUBAIR K.T.P., AGED 53 YEARS, S/O.ABDUL KHADER, K.T.P.HOUSE, PAPPINISSERY WEST P.O., KANNUR DISTRICT, REPRESENTED BY HIS POWER OF ATTORNEY HOLDER, ABDUL MAJEED, S/O.VATTAPARAMBIL MOIDEEN, KALPAKANCHERY AMSOM DESOM, KALPAKANCHERY P.O., TIRUR TALUK, MALAPPURAM DISTRICT, PIN – 676555. BY ADV. SRI.G.SUDHEER, PUBLIC PROSECUTOR THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 17.11.2022, ALONG WITH CRL.M.C.NO.8180/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ## **Crl.M.C. Nos.8180 & 8181 of 2022** 3 ## **O R D E R** **Dated, this the 17[th] November, 2022** These are petitions filed under Section 482 of the Code of Criminal Procedure (herein referred to as 'Cr.P.C.' for short) challenging two separate orders passed in Crl.M.P. No.354/2022 in S.T.C.No.101/2022 and Crl.M.P. No.355/2022 in S.T.C.No.102/2022, pending before the Judicial First Class Magistrate Court-IV, Kannur. The petitioner is the accused in the above Crl.M.P. 2. As per the orders impugned, the learned Magistrate directed the petitioner to deposit 20% of the cheque amount as compensation, as provided under Section 143(1) read with (2) of the Negotiable Instruments Act (hereinafter referred to as 'N.I Act' for convenience). 3. Aggrieved by the said orders, the petitioner has approached this Court. The prayer in Crl.M.C.No.8180/2022 is as under: “ _For these and other grounds to be submitted_ ## **Crl.M.C. Nos.8180 & 8181 of 2022** 4 _at the time of hearing, it is respectfully prayed that this Honourable Court may be pleased to quash Annexure A3 Order dated 01.08.2022 in C.M.P. No.354/2022 in S.T.C. No.101/2022 on the file of the Judicial First Class Magistrate Court-IV, Kannur._ ” **==> picture [395 x 13] intentionally omitted <==** No.8181/2022 is as under: “ _For these and other grounds to be submitted at the time of hearing, it is respectfully prayed that this Honourable Court may be pleased to quash Annexure A3 Order dated 01.08.2022 in C.M.P. No.355/2022 in S.T.C. No.102/2022 on the file of the Judicial First Class Magistrate Court-IV, Kannur._ ” **==> picture [395 x 13] intentionally omitted <==** submitted by the learned counsel for the petitioner that the decision of the Apex Court in [2019 (3) KHC 355 : 2019 (2) KLD 1 : 2019 **==> picture [431 x 12] intentionally omitted <==** **==> picture [431 x 45] intentionally omitted <==** _**Surinder Singh Deswal @ Col. S.S.Deswal & Ors.**_ _**v. Virender Gandhi**_ holding the view that the word 'may' used in Section 148 of the N.I Act **Crl.M.C. Nos.8180 & 8181 of 2022** 5 to be construed as a 'rule' or 'shall', is not good law. 5. The learned counsel for the petitioner has pointed out that the word 'may' used in Section 143A of the N.I Act has given a discretion to the trial court to direct deposit of 20% of the cheque amount. But the same is not mandatory. 6. In fact, this Court is bound under Article 141 of the Constitution of India to follow the ratio of the Apex Court, while dealing with Section 148 of the N.I Act in _**Surinder Singh Deswal @ Col. S.S.Deswal & Ors.**_ _**v. Virender Gandhi**_ ( _supra_ ). 7. This Court also followed the said ratio in a decision reported in [2020 (1) Crimes(HC) 582], _**Thomas v. State of Kerala & anr.**_ 8. That apart, in the decision reported in [2019 (4) KLT 558], _**Jisha v. State of Kerala and Another,**_ wherein it was held that: ## **Crl.M.C. Nos.8180 & 8181 of 2022** ## 6 _“it is indicative on a reading Section 143A which has been newly introduced into the N.I. Act that the Court trying an offence under Section 138 shall Suo motu exercise the power. There is no need for an application to be filed by the complainant in that regard. Likewise, the section also does not provide for an opportunity, for the accused to be heard. Nowhere under Section 143A N.I. Act, it is provided that prior to passing of an order directing payment of interim compensation, the accused needs to be granted an opportunity of being heard. Even though the word 'may' is in use in the provision, it will have the impact of 'shall' since prosecutions launched under Section 142 cannot be identified as scrupulous or unscrupulous ones at the preliminary stage when complaint is filed. Interim compensation contemplated under section 143A N.I. Act is something meant to be imposed on all accused irrespective of the amount involved in the prosecution filed under Section 142 N.I. Act.”_ 9. The legal position is not in dispute that as per the statutory mandate under Section 143A of the N.I Act, the court trying an offence punishable under Section 138 of the N.I Act, is competent to order the drawer of the cheque to pay interim compensation which shall **Crl.M.C. Nos.8180 & 8181 of 2022** 7 not exceed 20% of the cheque amount. Similarly the appellate court also is competent to direct deposit of such sum which shall be a minimum of 20% of the fine amount or compensation awarded by the trial court. It is provided that the amount payable under sub section (1) of Section 148 of the N.I Act, shall be paid by the accused under Section 143-A of the N.I Act. 10. Thus it appears that the direction for deposit of 20% of the compensation amount as per the impugned orders is within the power of the trial court and such a power exercised by the trial court needs no interference. Therefore, the orders impugned do not require any interference. Accordingly, Crl.M.C.Nos.8180/2022 and 8181/2022 are dismissed. Sd/- ## **A.BADHARUDEEN, JUDGE.** ww 8 ## **Crl.M.C. Nos.8180 & 8181 of 2022** ## **APPENDIX OF CRL.MC 8180/2022** ## PETITIONER'S ANNEXURES: ANNEXURE A1 TRUE COPY OF REPLY NOTICE 22.09.2021 ISSUED BY ADV.SURESH A. ALINGAL TO THE COUNSEL FOR THE COMPLAINANT ADV.M.A. ISMAIL. ANNEXURE A2 TRUE COPY OF COMPLAINT DATED 20.10.2021 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT - II, KANNUR AND NUMBERED AS S.T.C. NO. 450/2021. ANNEXURE A3 CERTIFIED COPY OF THE ORDER DATED 01.08.2022 IN C.M.P. NO.354/2022 IN S.T.C. NO.101/2022 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTIV, KANNUR. 9 ## **Crl.M.C. Nos.8180 & 8181 of 2022** ## **APPENDIX OF CRL.MC 8181/2022** ## PETITIONER'S ANNEXURES: ANNEXURE A1 TRUE COPY OF REPLY NOTICE 22.09.2021 ISSUED BY ADV.SURESH A. ALINGAL TO THE COUNSEL FOR THE COMPLAINANT ADV.M.A. ISMAIL. ANNEXURE A2 TRUE COPY OF COMPLAINT DATED 20.10.2021 FILED BY THE 2ND RESPONDENT BEFORE THE JUDICIAL FIRST CLASS MAGISTRATE'S COURT - II, KANNUR AND NUMBERED AS S.T.C. NO. 451/2021. ANNEXURE A3 CERTIFIED COPY OF THE ORDER DATED 01.08.2022 IN C.M.P. NO.354/2022 IN S.T.C. NO.101/2022 ON THE FILE OF THE JUDICIAL FIRST CLASS MAGISTRATE COURTIV, KANNUR.