Shabeena v. Rahiman & State (CRL.MC 3350/2022) and Shabeena.K v. Rahiman & State (CRL.MC 3401/2022)

# `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 ``` ``` CRL.MC NO. 3350 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN ST 38/2022 OF CHIEF JUDICIAL ``` ``` MAGISTRATE, KASARAGOD ``` ## `- PETITIONER/RESPONDENT/ACCUSED :` ``` SHABEENA AGED 38 YEARS HAPPY HOUSE, THAIVALAPPU CHOORI, RD NAGAR, PO KUDLU, KASARAGOD TALUK AND DISTRICT, PIN – 671124 ``` ## `BY ADV R.KRISHNAKUMAR (CHERTHALA)` ## `RESPONDENTS/PETITIONER/COMPLAINANT & STATE :` ``` 1RAHIMAN AGED 39 YEARS SALI MANZIL, RD NAGAR, POST KUDLU, KASARAGOD, PIN – 671124 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR,HIGH COURT OF KERALA, PIN – 682031 ``` ``` BY SRI.RENJITH GEORGE, SR.PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.06.2022, ALONG WITH Crl.MC.3401/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 2 ``` ## `IN THE HIGH COURT OF KERALA AT ERNAKULAM` ## `PRESENT` ``` THE HONOURABLE MRS. JUSTICE MARY JOSEPH ``` ``` MONDAY, THE 6[TH] DAY OF JUNE 2022 / 16TH JYAISHTA, 1944 ``` ``` CRL.MC NO. 3401 OF 2022 ``` ``` AGAINST THE ORDER/JUDGMENT IN ST 37/2022 OF CHIEF JUDICIAL MAGISTRATE, KASARAGOD ``` ## `- PETITIONER/RESPONDENT/ACCUSED :` ``` SHABEENA.K AGED 38 YEARS HAPPY HOUSE, THAIVALAPPU CHOORI, RD NAGAR, PO KUDLU, KASARAGOD TALUK AND DISTRICT, PIN – 671124 ``` ``` BY ADV R.KRISHNAKUMAR (CHERTHALA) ``` ## `- RESPONDENTS/PETITIONER/COMPLAINANT & STATE :` ``` 1RAHIMAN AGED 41 YEARS SALI MANZIL, RD NAGAR, POST KUDLU, KASARAGOD, PIN – 671124 ``` ``` 2STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, PIN – 682031 ``` ``` SRI.V.S.SREEJITH, PP ``` ``` THIS CRIMINAL MISC. CASE HAVING COME UP FOR ADMISSION ON 06.06.2022, ALONG WITH Crl.MC.3350/2022, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: ``` ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 3 ``` ## ORDER [Crl.MC Nos.3350/2022, 3401/2022] These petitions are filed under Section 482 of the Code of Criminal Procedure, 1973 (for short ‘Cr.P.C’) seeking to reverse an order passed by Chief Judicial Magistrate, Kasaragod (for short ‘court below’) in CMP No.841/2022 and CMP No.842/2022 filed respectivley in STC.No.38/2022 and STC.No.37/2022. Copy of which is produced alongwith the petiton on hand as Annexure A2. The impugned orders were passed by the court below in applications filed by the complainant under Sections 138 read with 143A of Negotiable Instruments Act, 1881 (for short ‘NI Act’) directing the petitioner to deposit 20% of the cheque amount as interim compensation. 2. The grievance of the petitioner was that though the complaints in question was filed in the year 2012 raising allegation that the petitioner herein has committed an offence punishable under Section 138 NI Act, the petitioner did not turn up to contest the same. Thus, the cases were transferred to the register of long pending cases in the years 2014 & 2013 respectively. The petitioner surrendered before the court on ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 4 ``` 11.04.2022. Bail was granted to her. She was directed to pay Rs.70,000/- being 20% of the cheque amount as interim compensation under Section 143A NI Act, within one month in both the cases. 3. The grievance of the learned counsel for the petitioner was that Section 143A has been incorporated into the NI Act on 01.09.2018 and it cannot be taken to have operation retrospectively so as to direct the accused to pay 20% of the cheque amount in a prosecution launched in the year 2012. According to him the court below has gone wrong in invoking Section 143A NI Act to a complaint lodged in the year 2012 and directing the accused to pay 20% of the cheque amount to the complainant as interim compensation. The learned counsel urged for reversal of the order under challenge concluding that the provision has only prospective operation. The dictum in Raja G.J. v. Tejraj Suvarna [2019 (4) KHC 201 (SC)] was also relied on to support his argument. 4. It is an undisputed factum that Section 143A has no operation to prosecutions under Section 138 N.I.Act launched prior to it’s incorporation in N.I.Act. Section 143A is extracted hereunder to have more clarity: ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 5 ``` “ 143A. Power to direct interim compensation.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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) to 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 date of the order under sub-section (1), or within such further period not exceeding thirty days as may be directed by the court on sufficient cause being shown by the drawer of the cheque . (4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial years, 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 . (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) . ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 6 ``` (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.” It is contemplated by the above provision that the court trying an offence under Section 138 NI Act may order the drawer of the cheque to pay compensation to the complainant in a summary trial or a Summons Case, where he pleads not guilty to the accusation made in the complaint. Therefore, the benefit of the provision can be availed by the complainant or can be ordered in favour of the complainant in a prosecution under Section 138 N.I. Act, being a Summons trial case, at the time when the particulars of the accusations were read over to him and he pleads not guilty. 5 . The Apex Court in Raja G.J. Supra has held that Section 143A is prospective in operation and that provision can be applied or invoked only in cases where offences under Section 138 is committed after the introduction of Section 143A in the Statute book i.e. with effect from 01.09.2018. In the cases on hand the factual situation is quite different from the one in Raja G.J. Supra. ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 7 ``` 6. Complaint was originally filed on 09.01.2012. Later on, the accused did not turn up. Several compulsory measures have been taken to procure her presence before the court and to proceed with the complaint. 7. Thereafter, the court below has transferred the cases to the Long Pending Register. Thus the cases have been removed from the normal files of the court and has been kept in pendency in the Long Pending Register. Subsequently the petitioner has surrendered before the Court in the year 2022. i.e. after a lapse of ten years. Thereupon the cases were restored to the normal files of the court below and assigned with new numbers. The present numbers of the cases are of the year 2022. Since the petitioner has surrendered before the court below and pleaded not guilty on particulars of accusations having been read over to her, the court below is justified in issuing a direction to the petitioner to deposit 20% of the cheque amount as interim compensation to the complainant. As rightly observed by the court below, petitioner’s disobedience to processes issued by the court has delayed the prosecution from proceeding further. The purpose sought to be achieved by incorporating Section 143A into N.I. ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 8 ``` Act being to compensate the complainant by directing the accused to pay a portion of the cheque amount and the proceedings having been delayed due to non-cooperation of the accused, this Court is inclined only to confirm the order by treating it as an exceptional case. In the result, Crl.M.Cs fail and are dismissed. This Court directs the petitioner to deposit 20% of the cheque amount in both the cases within two weeks from the date of receipt of a certified copy of this order. Sd/- MARY JOSEPH JUDGE SMA ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 9 ``` ## `APPENDIX OF CRL.MC 3401/2022` ``` - PETITIONER ANNEXURES : ``` ``` Annexure1CERTIFIED COPY OF THE PRIVATE COMPLAINT FILED BY THE 1ST RESPONDENT HEREIN BEFORE THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD DATED 09-01-2012 Annexure2CERTIFIED COPY OF THE ORDER DATED 11- 04-2022 IN C.M.P NO. 842/2022 IN STC NO.37/2022 ON THE FILE OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD ``` ``` CRL.MC NOS. 3350 & 3401 OF 2022 ``` ``` 10 ``` ## `APPENDIX OF CRL.MC 3350/2022` ## `PETITIONER ANNEXURES :` ``` Annexure A1A TRUE COPY OF THE PRIVATE COMPLAINT FILED BY THE 1ST RESPONDENT HEREIN BEFORE THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD DATED 09- 01-2012 ``` ``` AnnexureA2CERTIFIED COPY OF THE ORDER DATED 11- 04-2022 IN CMP NO.841/2022 IN STC NO. 38/2022 ON THE FILE OF THE HON'BLE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD ```