Revision petition under sections 397/399 CrPC against order granting interim compensation under section 143A NI Act, with stay application and affidavits

IN THE COURT OF DISTRICT & SESSION JUDGE,

Name of court complex COURTS, MUMBAI

Versus

INDEX

DATE:

REVISIONIST

COUNSEL

IN THE COURT OF DISTRICT & SESSION JUDGE,

Name of court complex COURTS, MUMBAI

Versus

MEMO OF PARTIES

W/o Sh. Petitioner no. 1's husband's name

Residing at Petitioner no. 1's address

(Petitioner/Accused No. 1)

Accused no. 2's address,

(Petitioner/Accused No. 2)

Through its Authorised Signatory and Partner

Smt. Authorised signatory's name

V/S

Respondent company name Limited,

Registered Office at:

Respondent's registered office address, Mumbai

Respondent's nameRESPONDENT

Date:

Revisionist's nameREVISIONISTS

COUNSEL

IN THE COURT OF DISTRICT & SESSION JUDGE,

Name of court complex COURTS, MUMBAI

Versus

LIST OF DOCUMENTS

1. Copy of the order dated Date of impugned order (day)/Date of impugned order (month)/Date of impugned order (year) passed by the Court.

2. True copy of the application under Section 143A of the NI Act filed by the respondent/complainant before the Court below.

3. True copy of the complaint filed by the respondent.

DATE:

REVISIONIST

COUNSEL

IN THE COURT OF DISTRICT & SESSION JUDGE,

Name of court complex COURTS, MUMBAI

IN THE MATTER OF:-

Versus

REVISION PETITION UNDER SECTION 397 READ WITH SECTION 399 OF THE Cr.P.C. ON BEHALF OF THE REVISIONIST AGAINST THE ORDER DATED Date of impugned order (day)/Date of impugned order (month)/Date of impugned order (year) PASSED BY SH. Magistrate's name, MM, X COURT, ESPLANADE, MUMBAI, IN COMPLAINT CASE NO. Complaint case number/Complaint case year UNDER SECTION 138 NI ACT, TITLED “Complainant company name in case title LTD. VS. Accused's name in case title & OTHERS”

MOST RESPECTFULLY SHOWETH:-

A true copy of the impugned order dated Date of impugned order (day)/Date of impugned order (month)/Date of impugned order (year) passed by the Court below is annexed herewith as ANNEXURE P/1.

Residing at Accused no. 2's residence address;

Residing at Accused no. 4's residence address, Rajasthan-306103;

Residing at Accused no. 5's residence address, Delhi-110085;

vi. Mr. Accused no. 6's name of Accused no. 1 company name International, Accused no. 6's address, New Delhi-Accused no. 6's address pincode, as Accused No. 6

Residing at Accused no. 6's residence address-Accused no. 6's residence pincode.

“4. Prayer Clause:- It is humbly prayed on behalf of the Complainant Company that:

And for this act of kindness, the complainant company shall ever pray.”

In substance, the complainant company sought interim compensation from Accused Nos. 1 and 2 only, and did not seek any compensation from the other accused persons, namely, Accused Nos. 3 to 6.

A true copy of the said application under section 143A of the NI Act is annexed herewith as ANNEXURE P/2.

A true copy of the complaint filed by the respondent is annexed herewith as ANNEXURE P/1.

GROUNDS

A. Because the order of the court below is untenable both on the facts and in law in the present case, and is therefore liable to be set aside;

B. Because the court below did not consider the judgment of the Hon'ble High Court in its proper perspective and took an erroneous view of the said judgment, which resulted in the passing of the impugned order;

C. Because the Ld. MM failed to appreciate the judgment of the Hon'ble High Court of Mumbai, in which it was observed in paragraph 12 as under:

"12. The submissions of Mr. Jha that it is to be made applicable prospectively and not retrospectively can be accepted only to the extent of date of passing order by the judge. The word 'retrospective' is to be understood or read with meaningful, purposive interpretation. It is incorrect to accept that it is to be made not applicable to the cases which are filed only after Date section 143A came into force (day)/Date section 143A came into force (month)/Date section 143A came into force (year) and not applicable to the cases pending earlier in the trial as well as appellate Court. Huge number of cases under section 138 of the Act are pending in the Court. In these cases, if the pleas are recorded or charge is not framed, then the trial court can invoke its powers under section 143A after Date section 143A came into force (day)/Date section 143A came into force (month)/Date section 143A came into force (year) and can impose interim compensation which shall not exceed 20% of the amount of cheque. Same is the case in appeals. If the appeals are pending, the Court can pass interim orders under section 148 which states— 'the appellate court may order the appellant to deposit such sum which shall be minimum twenty percent of the fine or compensation awarded by the trial court.'"

(EMPHASIS SUPPLIED)

D. Because the court below erred in holding that the said judgment in Ajay Vinod Chandra Shah Vs. The State of Maharashtra & another does not cover the present case, since the said judgment holds that the court may invoke its power under section 143A to grant interim compensation as introduced by the amendment to the said section w.e.f. Date of section 143A amendment (day)/Date of section 143A amendment (month)/Date of section 143A amendment (year), and that such compensation may be granted in cases where a charge has not been framed against the accused;

E. Because the court below failed to appreciate that, in the present case, there are six accused persons, out of whom the pleas of four accused persons had already been recorded on Date of plea of accused nos. 3–6 (day)/Date of plea of accused nos. 3–6 (month)/Date of plea of accused nos. 3–6 (year), well before Date section 143A came into force (day)/Date section 143A came into force (month)/Date section 143A came into force (year), whereas the plea of the petitioner was recorded on Date of plea of petitioner no. 2 (day)/Date of plea of petitioner no. 2 (month)/Date of plea of petitioner no. 2 (year), i.e., after Date section 143A came into force (day)/Date section 143A came into force (month)/Date section 143A came into force (year); hence, the said judgment does not apply to the present case;

F. Because the court below failed to appreciate that, in the present case, the direction to pay interim compensation to the respondent/complainant has been made against the petitioner alone, although there are four other accused persons in the case; the liability of all the accused persons cannot be fastened upon one accused alone, and as such, the impugned order is liable to be set aside;

G. Because, as held in S.V. Mazumdar & Anr. Vs. Gujarat State Fertiliser Co Ltd., persons falling in three categories are liable under section 141 NI Act, namely:

"The three categories of persons covered by section 41 are as follows:

(EMPHASIS SUPPLIED)

Since, in the present case, the respondent himself has impleaded four other persons as accused in the case, it is clearly undisputed that the case of the respondent/complainant is that all the five other accused persons are liable to the company; hence, the present petitioner cannot be burdened with the liability of all the other accused persons. The order of the trial court is therefore bad in law and liable to be set aside.

PRAYER:

It is, therefore, most respectfully and humbly prayed that this Hon'ble Court may kindly be pleased to set aside the order dated Date of impugned order (day)/Date of impugned order (month)/Date of impugned order (year) passed in the matter titled "Complainant company name in case title Ltd. Vs. Accused's name in case title Accused's name suffix in case title & Others", being Complaint Case No. Complaint case number/Complaint case year under section 138 NI Act, pending before the Hon'ble court of Sh. Magistrate's name, MM, Magistrate's court number Court, Esplanade, Mumbai MM, North District, in the interests of justice.

Any other relief deemed fit and proper in the facts and circumstances of the case may also be passed in favour of the petitioner/appellant and against the respondent, in the interests of justice.

Date-

REVISIONIST

COUNSEL

IN THE COURT OF DISTRICT & SESSIONS JUDGE,

Name of court complex COURTS, MUMBAI

Versus

AFFIDAVIT

Affidavit of Smt. Deponent's name, W/o Sh. Deponent's husband's name (Petitioner/Accused No. 1) and duly authorised representative of Accused No. 2, residing at Deponent's address.

I, the above-named deponent, do hereby solemnly affirm and declare as under:

DEPONENT

VERIFICATION:-

DEPONENT

IN THE COURT OF DISTRICT & SESSION JUDGE,

Name of court complex COURTS, MUMBAI

IN THE MATTER OF:-

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APPLICATION UNDER SECTION 397(1) OF THE CODE OF CRIMINAL PROCEDURE FOR STAY OF THE OPERATION OF THE IMPUGNED ORDER DATED Date of impugned order (day)/Date of impugned order (month)/Date of impugned order (year) IN THE MATTER TITLED "Complainant company name in case title LTD. VS. Accused's name in case title Accused firm's name suffix in case title & OTHERS", COMPLAINT CASE NO. Complaint case number/Complaint case year UNDER SECTION 138 OF THE NI ACT, PENDING BEFORE THE HON'BLE COURT OF SH. Magistrate's name, MM, Magistrate's court number COURT, ESPLANADE, MUMBAI MM, NORTH DISTRICT, IN THE INTERESTS OF JUSTICE.

MOST RESPECTFULLY SHOWETH:

It is, therefore, most respectfully prayed that this Hon'ble Court may kindly be pleased to stay the operation of the impugned order dated Date of impugned order (day)/Date of impugned order (month)/Date of impugned order (year) in the matter titled "Complainant company name in case title LTD. VS. Accused's name in case title Accused firm's name suffix in case title & OTHERS", Complaint Case No. Complaint case number/Complaint case year under section 138 of the NI Act, pending before the Hon'ble Court of Sh. Magistrate's name, MM, Magistrate's court number Court, Esplanade, MUMBAI MM, in the interests of justice, till the decision of the accompanying revision petition.

Any other relief which this Hon'ble Court may deem fit and proper may also be passed in favour of the applicants/revisionists, in the interests of justice.

Date-

REVISIONIST

COUNSEL

IN THE COURT OF DISTRICT & SESSION JUDGE,

Name of court complex COURTS, MUMBAI

Versus

AFFIDAVIT

Affidavit of Smt. Deponent's name, W/o Sh. Deponent's husband's name (Petitioner/Accused No. 1) and authorised representative of Accused No. 2, residing at Deponent's house number, Deponent's floor Floor, Deponent's address, Deponent's city.

I, the above-named deponent, do hereby solemnly affirm and declare as under:

DEPONENT

VERIFICATION:-

DEPONENT