NOOR MOHAMMED Versus KHURRAM PASHA

NOOR MOHAMMED Versus KHURRAM PASHA


Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले


1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2022
(Arising out of Special Leave Petition (Criminal)No. 2872 of 2022)
NOOR MOHAMMED …Appellant
Versus
KHURRAM PASHA …Respondent
J U D G M E N T
Uday Umesh Lalit, J.
1. Leave granted.
2. This appeal challenges the correctness of the judgment and order dated
17.12.2021 passed by the High Court of Karnataka at Bengaluru (‘the High
Court’, for short) in Criminal Revision Petition No. 39 of 2021.
3. The instant proceedings arise out of Complaint Case No. 244 of 2019
instituted by the Respondent herein in respect of offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’, for short) in the
court of the Senior Civil Judge & JMFC, Nagamangala, submitting inter alia:
a) A cheque dated 25.02.2019 in the sum of Rs.7,00,000/- was drawn
by the Appellant in favour of the Respondent towards repayment of
hand loan received by the Appellant from the Respondent.
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b) Said cheque was presented for encashment on 01.03.2019 but was
dishonoured on account of “insufficient funds”.
c) Statutory notice was issued by the Respondent to the Appellant on
12.03.2019.
d) However, the Appellant failed to repay the amount to the
Respondent.
e) Consequently, the Appellant was guilty of offence punishable under
Section 138 of the Act.
4. After the cognizance of the aforesaid complaint was taken and the
summons were issued, the Appellant appeared before the concerned court through
his counsel on 16.08.2019. On the very same date, an order was passed by the
Trial Court directing the Appellant to deposit 20% of the cheque amount as
interim compensation in terms of Section 143(A) of the Act within 60 days. The
period so granted, got over on 15.10.2019 and on the request of the Appellant
further extension of 30 days was granted; but no deposit was made by the
Appellant.
5. When the matter was taken-up for examination of witnesses, an application
was made on behalf of the Appellant under Section 145(2) of the Act seeking
permission to cross-examine the Respondent. In view of his failure to deposit the
interim compensation as directed, the application preferred by the Appellant was
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found to be not maintainable and was dismissed by the Trial Court vide order
dated 25.10.2019.
6. By subsequent order dated 29.11.2019 the Complaint Case was accepted
by the Trial Court finding the Appellant guilty under Section 138 of the Act. The
Trial Court directed the Appellant to pay fine in the sum of Rs.7,00,000/-, in
default whereof to undergo simple imprisonment for six months. Out of the
aforesaid sum, Rs.5,000/- was to be remitted to the State while the remaining
amount of Rs.6,95,000/- was directed to be made over to the Respondent as
compensation under Section 357 of the Criminal Procedure Code, 1973 (‘the
Code’, for short).
7. The Appellant being aggrieved, preferred Criminal Appeal No. 190 of
2019 in the court of V Addl. District and Sessions Judge, Mandya, which appeal
however was dismissed by the Appellate Court by its order dated 28.10.2020.
The order of conviction and sentence passed by the Trial Court was thus affirmed.
During the course of its order one of the points raised for consideration was
whether the Trial Court had given sufficient opportunity to the Appellant to crossexamine the Respondent. It was observed by the Court:-
“18. It is relevant to mention here that in the present appeal
also, after filing of this appeal, accused did not comply with
the order of this Court dated 30.12.2019 to deposit 20% of
cheque amount, hence, it discloses that the accused is
reluctant in complying with the order of this Court. Under
these circumstances, this Court is of the opinion that learned
Magistrate has rightly refused the prayer made by accused
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seeking permission to cross-examine P.W.1 and proceeded
to pass impugned order”
8. The matter was carried further by the Appellant by filing Criminal
Revision Petition No. 39 of 2021 in the High Court. The High Court by its
judgment and order dated 17.12.2021, which is presently under challenge,
dismissed said Criminal Revision Petition affirming the view taken by the courts
below. It was observed that the conduct of the Appellant in not depositing the
interim compensation as directed, showed that he was only interested in
protracting the proceedings for one reason or the other.
9. In this appeal while issuing notice to the Respondent, this Court by its
Order dated 01.04.2022 directed the Appellant to deposit a sum of Rs.3,50,000/-
in the Registry of this Court and the amount has since then been deposited.
10. We have heard Mr. Shailesh Madiyal, learned advocate for the Appellant
and Mr. Anand Nuli, learned Advocate for the Respondent.
In the submission of Mr. Madiyal, in case the order of interim
compensation as directed in terms of Section 143A of the Act is not complied
with, the amount can be recovered in terms of Sub-Section 5 of said Section
143A as if it were a fine under Section 421 of the Code, but it would not be
within the competence of the court to deprive an accused of his right to crossexamine a witness; the denial of such right resulted in great prejudice to the
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Appellant and as such, the judgments and orders passed by the courts below
suffered from illegality and are required to be set aside.
On the other hand, Mr. Nuli submits that the orders passed by the courts
below were consistent with the mandate of Section 143A and the right to crossexamine was rightly closed by the courts below.
11. Before we examine the matter in issue, we may extract the relevant
provision namely Section 143A of the Act, which is to the following effect:-
“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) 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 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).
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(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.”
12. After empowering the court to pass an order directing the accused to
pay interim compensation under Sub-Section 1 of Section 143A, Sub-Section 2
then mandates that such interim compensation should not exceed 20 per cent of
the amount of the cheque. The period within which the interim compensation
must be paid is stipulated in Sub-Section 3, while Sub-Section 4 deals with
situations where the drawer of the cheque is acquitted. Said Sub-Section 4
contemplates repayment of interim compensation along with interest as
stipulated. Sub-Section 5 of said Section 143A then states “the interim
compensation payable under this Section can be recovered as if it were a fine”.
The expression interim compensation is one which is “payable under this
Section” and would thus take within its sweep the interim compensation directed
to be paid under Sub-Section 1 of said Section 143A.

13. The remedy for failure to pay interim compensation as directed by the
court is thus provided for by the Legislature. The method and modality of
recovery of interim compensation is clearly delineated by the Legislature. It is
well known principle that if a statute prescribes a method or modality for
exercise of power, by necessary implication, the other methods of performance
are not acceptable. While relying on the decision of the Privy Council in Nazir
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Ahmad vs. King Emperor1
, a Bench of three Judges of this Court made
following observations in State of Uttar Pradesh vs. Singhara Singh and
others2
.
“7. In Nazir Ahmed case, 63 Ind App 372; (AIR 1936 PC
253 (2)) the Judicial Committee observed that the principle
applied in Taylor v. Taylor [(1875) 1 Ch D 426, 431] to a
court, namely, that where a power is given to do a certain
thing in a certain way, the thing must be done in that way
or not at all and that other methods of performance are
necessarily forbidden, applied to judicial officers making a
record under Section 164 and, therefore, held that the
Magistrate could not give oral evidence of the confession
made to him which he had purported to record under
Section 164 of the Code. It was said that otherwise all the
precautions and safeguards laid down in Sections 164 and
364, both of which had to be read together, would become
of such trifling value as to be almost idle and that “it would
be an unnatural construction to hold that any other
procedure was permitted than that which is laid down with
such minute particularity in the sections themselves”.
8. The rule adopted in Taylor v. Taylor [(1875) 1 Ch D 426,
431] is well recognised and is founded on sound principle.
Its result is that if a statute has conferred a power to do an
act and has laid down the method in which that power has
to be exercised, it necessarily prohibits the doing of the act
in any other manner than that which has been prescribed.
The principle behind the rule is that if this were not so, the
statutory provision might as well not have been enacted. A
Magistrate, therefore, cannot in the course of investigation
record a confession except in the manner laid down in
Section 164. The power to record the confession had
obviously been given so that the confession might be
proved by the record of it made in the manner laid down. If
proof of the confession by other means was permissible, the
whole provision of Section 164 including the safeguards
contained in it for the protection of accused persons would
be rendered nugatory. The section, therefore, by conferring
on Magistrates the power to record statements or
confessions, by necessary implication, prohibited a
Magistrate from giving oral evidence of the statements or
confessions made to him.”
(Emphasis supplied)
1
 AIR1936 Privy Council 253 (2)
2
 AIR 1964 SC 358
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 In J.N. Ganatra vs. Morvi Municipality3
, exercise of power of
dismissal having not been done in conformity of the Act, the same was set aside.
It was stated:-
“4. We have heard the learned counsel for the parties. We
are of the view that the High Court fell into patent error in
reaching the conclusion that the dismissal of the appellant
from service, in utter violation of Rule 35 of the Rules, was
an “act done in pursuance or execution or intended
execution of this Act …”. It is no doubt correct that the
General Board of the Municipality had the power under the
Act to dismiss the appellant but the said power could only
be exercised in the manner indicated by Rule 35 of the
Rules. Admittedly the power of dismissal has not been
exercised the way it was required to be done under the Act.
It is settled proposition of law that a power under a statute
has to be exercised in accordance with the provisions of the
statute and in no other manner. In view of the categoric
finding given by the High Court to the effect that the order
of dismissal was on the face of it illegal and void, we have
no hesitation in holding that the dismissal of the appellant
was not an act done in pursuance or execution or intended
execution of the Act. The order of dismissal being patently
and grossly in violation of the plain provisions of the Rules.
It cannot be treated to have been passed under the Act.”
(Emphasis supplied)
 In Commissioner of Income Tax, Mumbai vs. Anjum M.H.
Ghaswala4
, a Constitution Bench of this Court stated the normal rule of
construction in such cases as under:-
“27. Then it is to be seen that the Act requires the Board
to exercise the power under Section 119 in a particular
manner i.e. by way of issuance of orders, instructions and
directions. These orders, instructions and directions are
meant to be issued to other income tax authorities for
proper administration of the Act. The Commission while
3
 (1996) 9 SCC 495
4
 (2002) 1 SCC 633
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exercising its quasi-judicial power of arriving at a
settlement under Section 245-D cannot have the
administrative power of issuing directions to other income
tax authorities. It is a normal rule of construction that
when a statute vests certain power in an authority to be
exercised in a particular manner then the said authority has
to exercise it only in the manner provided in the statute
itself. If that be so, since the Commission cannot exercise
the power of relaxation found in Section 119(2)(a) in the
manner provided therein it cannot invoke that power
under Section 119(2)(a) to exercise the same in its judicial
proceedings by following a procedure contrary to that
provided in sub-section (2) of Section 119.”
(Emphasis supplied)
14. The concerned provision nowhere contemplates that an accused who
had failed to deposit interim compensation could be fastened with any other
disability including denial of right to cross-examine the witnesses examined on
behalf of the complainant. Any such order foreclosing the right would not be
within the powers conferred upon the court and would, as a matter of fact, go
well beyond the permissible exercise of power.
15. Since the right to cross-examine the respondent was denied to the
Appellant, the decisions rendered by the courts below suffer from an inherent
infirmity and illegality. Therefore, we have no hesitation in allowing this appeal
and setting aside the decisions of all three courts with further direction that
Complaint Case No. 244 of 2019 shall stand restored to the file of the Trial Court.
The Trial Court is directed to permit the Appellant to cross-examine the
Respondent and then take the proceedings to a logical conclusion. With these
observations the appeal is allowed.
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16. It is also directed that 20% of the cheque amount namely Rs.1,40,000/-
must be deposited by the Appellant as interim compensation. The Registry is
directed to make over a sum of Rs.1,40,000/- to the Trial Court i.e. Senior Civil
Judge & JMFC, Nagamangala, Karnataka. The amount shall be kept in deposit
in Complaint Case No. 244 of 2019 and shall abide by such orders as the Trial
Court may deem appropriate to pass. Rest of the amount along with accrued
interest, if any, shall be made over to the Appellant. The Registry shall take out
a Pay Order in the name of the Appellant which shall be handed over to the
learned counsel for the Appellant.
17. In the end, it must be clarified that we have not and shall not be taken
to have reflected on the merits of the matter which shall be gone into after
affording right to cross-examine as stated above.
………………………..J.
[Uday Umesh Lalit]
………………………..J.
[S. Ravindra Bhat]
………………………..J.
[Sudhanshu Dhulia]
New Delhi;
August 02, 2022. 

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