Page No.# 1/4 GAHC010172262024 2026:GAU-AS:4038 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : Crl.Pet./1062/2024 KABINDRA NARZARY S/O- LATE KRISHNA MOHAN NARZARY, R/O- VILL- TITAGURI AMLAIGURI, P.O. TITAGURI-783370, P.S. AND DIST. KOKRAJHAR, BTC, ASSAM VERSUS MAFIJUL HOQUE AND ANR S/O- HUSSAIN ALI, R/O- VILL.- CHAUTAKI PT-I, P.O. SALAKATI, P.S. AND DIST. KOKRAJHAR, BTC, ASSAM, PIN- 783376. 2:MIER ALI S/O- LATE ABU BAKKAR R/O- VILL.- CHAUTAKI P.O. SALAKATI P.S. AND DIST. KOKRAJHAR BTC ASSAM PIN- 783376 Advocate for the Petitioner : MR G BAISHYA, MS. P DAS,K BANIK Advocate for the Respondent : MR. I A TALUKDAR (R-1), MR. I A TALUKDAR (R-2),MR. B HUSSAIN (R-1) Page No.# 2/4 :: BEFORE :: HON’BLE MR. JUSTICE PARTHIVJYOTI SAIKIA O R D E R 20.03.2026 Heard Mr. G. Baishya, the learned counsel appearing for the petitioner. Also heard Mr. I.A. Talukdar, the learned counsel representing the respondents. 2. This is an application under Section 528 of the BNSS, 2023 challenging the order dated 17.01.2022 passed by the learned Addl. Chief Judicial Magistrate, Kokrajhar in Complaint Case N.I. No.03/2022. 3. The short question involved in this criminal petition is, in a case under Section 138 of the N.I. Act, whether, without applying judicial mind, a court can direct the accused to pay 20% of the cheque amount under Section 143A of the Negotiable Instruments Act, 1881. 4. I have given anxious considerations to the submissions made by the learned counsel for both sides. 5. In Rakesh Ranjan Shrivastava v. State of Jharkhand, (2024) 4 SCC 419, the Supreme Court has held as under: “Factors to be considered while exercising discretion 22. When the court deals with an application under Section 143-A of the NI Act, the court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application under sub-section (1) of Section 143-A. The presumption under Section 139 of the NI Act, by itself, is no ground to direct the payment of interim compensation. The reason is that the presumption is rebuttable. The question of applying the presumption will arise at the trial. Only if the complainant makes out a prima facie case, a direction can be issued to pay interim compensation. At this stage, Page No.# 3/4 the fact that the accused is in financial distress can also be a consideration. 23. Even if the court concludes that a case is made out for grant of interim compensation, the court will have to apply its mind to the quantum of interim compensation to be granted. Even at this stage, the court will have to consider various factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant and the paying capacity of the accused. If the defence of the accused is found to be prima facie a plausible defence, the court may exercise discretion in refusing to grant interim compensation. 24. We may note that the factors required to be considered, which we have set out above, are not exhaustive. There could be several other factors in the facts of a given case, such as, the pendency of a civil suit, etc. While deciding the prayer made under Section 143-A, the Court must record brief reasons indicating consideration of all the relevant factors. 27. Subject to what is held earlier, the main conclusions can be summarised as follows: 27.1. The exercise of power under sub-section (1) of Section 143-A is discretionary. The provision is directory and not mandatory. The word “may” used in the provision cannot be construed as “shall”. 27.2. While deciding the prayer made under Section 143-A, the court must record brief reasons indicating consideration of all relevant factors. 27.3. The broad parameters for exercising the discretion under Section 143-A are as follows: 27.3.1. The court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application. The financial distress of the accused can also be a consideration. 27.3.2. A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case. 27.3.3. If the defence of the accused is found to be prima facie plausible, the court may exercise discretion in refusing to grant interim compensation. 27.3.4. If the court concludes that a case is made out to grant interim compensation, it will also have to apply its mind to the quantum of interim compensation to be granted. While doing so, the court will have to consider several factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant, etc. Page No.# 4/4 27.3.5. There could be several other relevant factors in the peculiar facts of a given case, which cannot be exhaustively stated. The parameters stated above are not exhaustive.” 6. Coming back to the case in hand, whenever an application under Section 143A of the N.I. Act is filed, the trial court has to exercise judicial mind because Section 143A uses the word “may”. The learned trial court has referred to the judgment of Rakesh Ranjan Shrivastava (supra), but the court has not probably gone through the judgment. 7. For the aforesaid reason, the impugned order directing the petitioner to deposit 20% of the cheque amount is set aside. The matter is remanded to the trial court for deciding afresh after hearing both sides in the light of the ratio laid down in Rakesh Ranjan Shrivastava (supra). With the aforesaid direction, the criminal petition is disposed of. JUDGE Comparing Assistant