NOOR MOHAMMEDversusKHURRAM PASHA

860                      [2022]REPORTS
               SUPREME COURT    6 S.C.R. 860                [2022] 6 S.C.R.


A                            NOOR MOHAMMED
                                        v.
                              KHURRAM PASHA
                               AUGUST 02, 2022
B                      (Criminal Appeal No.1123 of 2022)
            [UDAY UMESH LALIT, S. RAVINDRA BHAT AND
                    SUDHANSHU DHULIA, JJ.]
             Negotiable Instruments Act, 1881 – s.143A – Mandate of –
      Failure to deposit interim compensation in terms of s.143A and its
C
      effect, if any, on the right of accused to cross-examine witnesses
      examined on behalf of the complainant – Cheque of Rs.7,00,000/-
      drawn by appellant in favour of Respondent, dishonoured –
      Complaint case by Respondent u/s.138 – Trial court directed
      appellant to deposit 20% of the cheque amount as interim
D     compensation in terms of s.143(A) – No such deposit made by
      appellant – Application on behalf of appellant u/s.145(2) seeking
      permission to cross-examine respondent dismissed by trial court as
      not maintainable, in view of appellant’s failure to deposit the interim
      compensation as directed – Right of appellant to cross-examine the
      respondent, if rightly closed by the courts below – Held: The
E
      concerned provision, namely, s.143A, 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
F     conferred upon the court – Since the right to cross-examine the
      respondent was denied to the appellant, complaint case restored to
      trial court – Trial Court to permit appellant to cross-examine
      respondent and then take the proceedings to a logical conclusion –
      Also, 20% of the cheque amount, namely Rs.1,40,000/-, to be
      deposited by appellant as interim compensation.
G
            Interpretation of Statutes – Remedy provided for by the
      Legislature – Method and modalities also clearly delineated – Rule
      of construction – Held: Powers under a statute are to be exercised
      in the manner prescribed in the statute – If a statute prescribes a
H
                                       860
          NOOR MOHAMMED v. KHURRAM PASHA                              861


method or modality for exercise of power, by necessary implication,   A
the other methods of performance are not acceptable.
      Allowing the appeal, the Court
      HELD:1.1. 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      B
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    C
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          D
Section 143A. [Para 12][866-D-F]
       1.2. 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     E
that if a statute prescribes a method or modality for exercise of
power, by necessary implication, the other methods of
performance are not acceptable. [Para 13][866-G]
      1.3. The concerned provision nowhere contemplates that
an accused who had failed to deposit interim compensation could       F
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. [Para      G
14][869-C-D]
      State of Uttar Pradesh v. Singhara Singh and Others
      AIR 1964 SC 358 : [1964] 4 SCR 485; J.N. Ganatra
      v. Morvi Municipality (1996) 9 SCC 495 : [1996]
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862            SUPREME COURT REPORTS                       [2022] 6 S.C.R.


A           3 Suppl. SCR 742 and Commissioner of Income Tax,
            Mumbai v. Anjum M.H. Ghaswala, (2002) 1 SCC 633 :
            [2001] 4 Suppl. SCR 303 – relied on.

            Nazir Ahmad v. King Emperor AIR 1936 Privy Council
            253 (2) – referred to.
B
             2. 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,
      the decisions of all three courts are set aside with further direction
C     that Complaint Case 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. It is also directed that 20% of the cheque
      amount namely Rs.1,40,000/- must be deposited by the Appellant
      as interim compensation. [Paras 15, 16][869-D-F]
D
                             Case Law Reference

      [1964] 4 SCR 485                  relied on          Para 13

      [1996] 3 Suppl. SCR 742           relied on          Para 13
E
      [2001] 4 Suppl. SCR 303           relied on          Para 13

            CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
      1123 of 2022.
F           From the Judgment and Order dated 17.12.2021 of the High Court
      of Karnataka at Bengaluru in Criminal Revision Petition No.39 of 2021.

            Shailesh Madiyal, Mrigank Prabhakar, Vaibhav Sabharwal,
      Ms. Rakhi Madiyal, Rajan Parmar, Vinayaka Pandit, Advs. for the
G     Appellant.

           Anand Sanjay M. Nuli, Dharm Singh, Ms. Nandini Pandey, Ms.
      Akhila Wali, Vaibhav Malimath, M/s Nuli & Nuli, Advs. for the
      Respondent.

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           NOOR MOHAMMED v. KHURRAM PASHA                                   863


      The Judgment of the Court was delivered by                            A

      UDAY UMESH LALIT, J.

      1. Leave granted.

       2. This appeal challenges the correctness of the judgment and        B
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           C
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         D
         repayment of hand loan received by the Appellant from the
         Respondent.
      b) Said cheque was presented for encashment on 01.03.2019
         but was dishonoured on account of “insufficient funds”.
                                                                            E
      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       F
         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      G
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.

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864             SUPREME COURT REPORTS                           [2022] 6 S.C.R.


A            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 found to be not maintainable
      and was dismissed by the Trial Court vide order dated 25.10.2019.
B
             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
C
      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,
D     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 cross- examine the Respondent.
E     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
F           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 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
G     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
H     or the other.
           NOOR MOHAMMED v. KHURRAM PASHA                                      865
                 [UDAY UMESH LALIT, J.]

       9. In this appeal while issuing notice to the Respondent, this Court    A
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.         B
       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           C
accused of his right to cross- examine a witness; the denial of such
right resulted in great prejudice to the 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       D
courts below were consistent with the mandate of Section 143A and the
right to cross- examine 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:-                                                                       E
      “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 –                                        F
          (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.                             G

      (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.
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866                SUPREME COURT REPORTS                         [2022] 6 S.C.R.


A              (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
B
               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).
C
               (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.”
D
             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
E     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
F     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
G     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 Ahmad vs. King Emperor1, a
      1
H         AIR1936 Privy Council 253 (2)
              NOOR MOHAMMED v. KHURRAM PASHA                                   867
                    [UDAY UMESH LALIT, J.]

Bench of three Judges of this Court made following observations in             A
State of Uttar Pradesh vs. Singhara Singh and others 2.
         “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    B
         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       C
         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”.      D
         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   E
         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       F
         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           G
         statements or confessions, by necessary implication, prohibited a
         Magistrate from giving oral evidence of the statements or
         confessions made to him.”
                                                       (Emphasis supplied)
2
    AIR 1964 SC 358                                                            H
868               SUPREME COURT REPORTS                           [2022] 6 S.C.R.


A            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
B              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.
C              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
D              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.”
E
                                                              (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:-
F              “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
G              Commission while 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


      3
          (1996) 9 SCC 495
      4
H         (2002) 1 SCC 633
           NOOR MOHAMMED v. KHURRAM PASHA                                        869
                 [UDAY UMESH LALIT, J.]

       normal rule of construction that when a statute vests certain power       A
       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
                                                                                 B
       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                   C
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.                                                               D

       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           E
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.
       16. It is also directed that 20% of the cheque amount namely              F
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            G
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.

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870             SUPREME COURT REPORTS                         [2022] 6 S.C.R.


A           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.


      Bibhuti Bhushan Bose                                       Appeal allowed.
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