Karnataka High Court
Sri Santhosh J vs Sri V Narasimha Murthy on 18 February, 2019
-1-
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF FEBRUARY, 2019 R
BEFORE
THE HON'BLE MR.JUSTICE B.A.PATIL
I.A.No.3/2018
IN
CRIMINAL REVISION PETITION NO.425/2018
BETWEEN :
Sri V. Narasimha Murthy
S/o late Venkataramanappa
Aged about 46 years
Partner of Darshan Auto Service
R/at No.289/4,
Begur Main Road, Begur,
Bengaluru-560 068. .. Applicant
(By Sri C.H.Jadhav, Senior Counsel for
Smt. Rashmi Jadhav, Advocate)
AND :
Sri Santhosh J.,
S/o Sri Jaipal
Aged about 39 years
R/at No.723, 62nd Cross
5th Block, Rajajinagar
Bengaluru-560 010.
... Respondent
(By Sri S. Mahesh, Advocate for Sri S. Vinod, Advocate) -2- This I.A.No.3/2018 is filed under Section 148 of Negotiable Instruments Act r/w 482 of Cr.P.C. praying to release the amount deposited by the accused before the Chief Judicial Magistrate, Bangalore Rural District, Bangalore, in CC.No.5021/2013, vide order dated 24.4.2018 passed by the Hon'ble High Court, in favour of the applicant-complainant.
This I.A.No.3/2018 having been heard and reserved on 07.02.2019 coming on for pronouncement of orders this day, the Court made the following:- ORDER ON IA NO.3/2018
The present application has been filed by the respondent-complainant under Section 148 of The Negotiable Instruments Act, ('Act' for short) r/w. Section 482 of Cr.P.C. praying to release the amount in deposit made by the petitioner-accused in C.C.No.5021/2013 as per the order passed by this Court dated 24.4.2018.
The said application is accompanied with affidavit of the respondent-complainant. In the said affidavit it is contended that in order to discharge the legal enforceable debt, two post dated cheques dated 2.5.2013 for a sum of Rs.50,00,000/- and Rs.10,00,000/- had -3- been issued, but subsequently the said cheques were dishonoured and thereafter a legal notice was issued. As the accused did not pay the amount, the complainant filed a complaint under Section 138 of the Negotiable Instruments Act. The Court below after considering the material placed on record, by the order dated 27.10.2016 convicted the accused for the offence punishable under Section 138 of the Act and sentenced him to undergo simple imprisonment for a period of one year and to pay a fine of Rs.70,00,000/-. The trial Court also held that in default of payment, the accused shall also undergo further simple imprisonment for a period of three months and out of the said fine amount, an amount of Rs.69,00,000/- was ordered to be paid as a compensation to the complainant. Being aggrieved by the same, accused preferred Criminal Appeal No.67/2016 before the VII Additional District and Sessions Judge, Bangalore Rural District, Bangalore. The said appeal came to be dismissed on 24.3.2018. Against the said -4- judgment, the present revision petition is filed by the accused with an application in I.A.No.1/2018 praying to suspend the sentence imposed against him.
2. This Court by an order dated 24.4.2018 allowed I.A.No.1/2018 by suspending the sentence and directing the petitioner-accused to deposit 75% of the cheque amount before the trial Court.
3. Now, I.A.No.3/2018 is filed by the complainant- respondent praying to release the amount deposited by the accused. It is stated in the affidavit filed in support of the application that the complainant has been deprived of the money for more than seven years and he had performed the marriage ceremony of his daughter by borrowing the hand loan. In order to clear the said loan and marriage expenses, he required the said amount. On these grounds he prayed to allow the application and to release the amount in deposit.
-5-
4. The said application has been seriously contested by the petitioner-accused by filing his objections contending that the provisions of Section 148 of the Act cannot be invoked by the respondent-complainant since imposing of the fine was passed by the trial Court prior to amendment, i.e. on 27.10.2016. At that point of time, the provisions of Section 148 of the Act were not in existence and it came into force only on 2.8.2018 and it is not having any retrospective effect. It is further contended that the said application is not maintainable and the same is liable to be dismissed.
5. I have heard Sri C.H.Jadhav, learned Senior Counsel for the applicant-complainant and the learned counsel for the accused.
6. It is the submission of the learned Senior Counsel for the applicant-complainant that Section 148 of the Act is a specific provision which supersedes general law and as per Section 401(4) of Cr.P.C., it over shadows -6- the general power and even though it is a revisional power, it is like an appellate power. He further submitted that the law can be given retrospective effect when it is a beneficial legislation. The object of the Act was to give benefit to the complainant who has suffered at the hands of the accused. He further submitted that the trial Court convicted the accused and the first appellate Court has also confirmed the same. Already there is a concurrent finding that the accused has committed an offence punishable under Section 138 of the Act. He further submitted that under Section 401 of Cr.P.C. wide power has been given to the Court and the technicalities should be kept to a bear minimum, in order to avoid injustice. On these grounds he prayed to allow the application.
7. Per contra, the learned counsel for the accused vehemently argued and submitted that unless the terms of the statute expressly so provided, it cannot be given retrospective operation. It should be given only prospective effect. He further submitted that the -7- judgment and order of conviction and sentence was passed on 27.10.2016 and thereafter an appeal has been preferred. Section 148 of the Act was amended by Notification dated 2.1.2018 and it came into force only on 2.8.2018. In that light, he submitted that the complainant is not entitled to release of the said amount. He further submitted that a logical corollary of the general rule is that the statute will be having prospective operation until it has specifically stated that it is having a retrospective operation. In order to substantiate the said contention he relied upon the decision in the case of S.L.Srinivasa Jute Twine Mills (P) Ltd. Vs. Union of India and Another reported in (2006)2 SCC 740. By referring Section 148 of the Act, he further submitted that the word used is "appellate Court", which itself clearly goes to show that it is the first appellate Court which has been empowered to release the amount in the event of deposit. He further submitted that already a right has been existing in favour of the accused. The said -8- right cannot be taken away by interpreting the said statute, otherwise than the one for which it has been made. By relying upon the decision of Punjab and Haryana High Court in the case of Amandeep Singh Vs. Monika Batia reported in CRM-M 54046-2018 he submitted that the appellate Court has to decide the case on merits and it cannot dispose of the Interlocutory Applications for release of the amount. On these grounds, he prayed to dismiss the application.
8. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and I have given my anxious consideration to the citations quoted by the learned counsel for the accused.
9. Before going to consider the submissions made by the learned counsel appearing for the parties it is the case of the complainant that the complainant and accused were acquainted with each other. In obligation of -9- the financial transactions, the complainant handed over an amount of Rs.60,00,000/- to the accused for the purpose of erecting and to display hoardings at various locations and the accused agreed to repay the same within one year and the said amount was given by the complainant by way of two demand drafts amounting to Rs.30,00,000/- each on 14.3.2011 and on 16.3.2011 drawn on Syndicate Bank. Thereafter, accused did not pay and he issued a cheque dated 2.5.2013 for a sum of Rs.50,00,000/- drawn on HDFC Bank and another cheque for Rs.10 lakhs drawn on Andhra Bank and when they were presented, they returned with the postal shara as 'insufficient funds'. Thereafter, a legal notice dated 15.5.2013 was issued. In spite of service of notice, accused did not pay the said cheque amount within the statutory period and as such the complaint was registered. After considering the material placed on record, the trial Court convicted the accused and sentenced him to undergo simple imprisonment for a
- 10 -
period of one year and to pay a fine of Rs.70,00,000/-. The trial Court also held that in default of payment, the accused shall undergo further simple imprisonment for a period of three months out of the fine amount, accused shall pay an amount of Rs.69,00,000/- as a compensation to the complainant. Against which, Criminal Appeal No.67/2016 was filed and the same was dismissed on 24.3.2018 by confirming the order of the Court below. Against the said order, the accused filed the present criminal revision petition before this Court. This Court by its order dated 24.4.2018 on the submission made by the learned counsel for the petitioner-accused that he is ready and willing to deposit 50% of the cheque amount including the amount which has been already deposited, suspended the sentence subject to the petitioner-accused depositing 75% of the cheque amount inclusive of the amount already deposited. Now the respondent-complainant has filed I.A.No.3/2018 for release of the said amount.
- 11 -
10. It is the specific contention of the learned counsel for the accused that as on the date of the conviction, Section 148 of the Act was not there in the Act and as such it cannot be given retrospective effect and the application is not maintainable.
11. Whereas, it is the contention of the Learned Senior counsel for the complainant that High Court has wide power amenable under Section 401 of Cr.P.C. on its discretion exercise any of the powers conferred on a Court of Appeal and in that light he submitted that though in Section 148 of the Act the word "appellate Court" is used, this Court can also exercise the power of the appellate Court and release 20% of the amount in deposit.
12. Before going to consider the submissions, I feel it just and proper to quote Section 401 of Cr.P.C. which reads as under:-
- 12 -
"401: High Court's Power of revision.- (1) In the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may, in its discretion, exercise any of the powers conferred on a Court of Appeal by Sections 386, 389, 390 and 391 or on a Court of Session by Section 307 and, when the Judges composing the Court of revision are equally divided in opinion, the case shall be disposed of in the manner provided by Section 392.
(2) No order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence.
(3) Nothing in this section shall be deemed to authorise a High Court to convert a finding of acquittal into one of conviction.
(4) Where under this Code an appeal lies and no appeal is brought, no proceeding
- 13 -
by way of revision shall be entertained at the instance of the party who could have appealed.
(5) Where under this Code an appeal lies but an application for revision has been made to the High Court by any person and the High Court is satisfied that such application was made under the erroneous belief that no appeal lies thereto and that it is necessary in the interests of justice so to do, the High Court may treat the application for revision as a petition of appeal and deal with the same accordingly."
13. It is also relevant to quote here itself Section 148 of the Act which reads as under:-
"148: Power of Appellate Court to order payment pending appeal against conviction: (1) Notwithstanding anything contained in the code of Criminal Procedure, 1973 (2 of 1974), in an appeal by the drawer against conviction under Section 138,
- 14 -
the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court:
PROVIDED that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under Section 143A.
(2) The amount referred to in sub-
section (1) shall be deposited 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 appellant.
(3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal:
PROVIDED that if the appellant is acquitted, the Court shall direct the
complainant to repay to the appellant the amount so released, with interest at the
- 15 -
bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, 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."
14. On close reading of Section 148 of the Act that the appellate Court may order the accused to deposit a minimum of 20% of the fine amount or the compensation awarded by the trial Court and if the said amount is deposited within 60 days from such order, the said Court may direct to release the amount in deposit made by the accused to the complainant during the pendency of the matter. Proviso of the said Act says that while releasing such amount, the complainant must be directed to repay the said amount in the event of acquittal of the accused with interest at the bank rate which was prevailing during the said period.
- 16 -
15. On plain reading of the said Section it indicates that it is the appellate Court which has got power to order for release of such amount which has been deposited by the accused. The crucial question which arises for my consideration is: "What is the effect of amendment of Section 148 of the Act?" It is a cardinal principle of construction that every statute is prima facie prospective in nature, unless it is expressly or by necessary implication made to have retrospective operation. This proposition of law has been laid down by the Hon'ble Apex Court in the case of Keshavan Madhava Menon Vs. State of Bombay reported in AIR 1951 SC 128 and the same has also been referred at paragraph- 18 of the decision in the case of S.L.Srinivasa Jute Twine Mills (P) Ltd., Vs. Union of India and Another (cited supra), which reads as under:-
"18. It is a cardinal principle of construction that every statute is prima facie prospective unless it is expressly or by
- 17 -
necessary implication made to have retrospective operation.(See Keshvan
Madhava Menon v. State of Bombay.) But the rule in general is applicable where the object of the statute is to affect vested rights or to impose new burdens or to impair existing obligations. Unless there are words in the statute sufficient to show the intention of the Legislature to affect existing rights, it is deemed to be prospective only 'nova constitutio futuris formam imponere debet non praeteritis'. In the words of Lord Blanesburg, "provisions which touch a right in existence at the passing of the statute are not to be applied retrospectively in the absence of express enactment or necessary intendment." (See Delhi Cloth & General Mills Co. Ltd. v. CIT, AIR p.244).
"Every statute, it has been said", observed Lopes, L.J., "which takes away or impairs vested rights acquired under existing laws, or
- 18 -
creates a new obligation or imposes a new duty, or attaches a new disability in respect of transactions already past, must be presumed to be intended not to have a retrospective effect."(See Amireddi Rajagopala Rao v. Amireddi Sitharamamma.) As a logical corollary of the general rule, that retrospective operation is not taken to be intended unless that intention is manifested by express words or necessary implication, there is a subordinate rule to the effect that a statute or a section in it is not to be construed so as to have larger retrospective operation than its language renders necessary. (See Reid v. Reid.) In other words close attention must be paid to the language of the statutory provision for determining the scope of the retrospectivity intended by Parliament. (See Union of India v. Raghubir Singh) The above position has been highlighted in "Principles of Statutory Interpretation" by Justice G.P. Singh. (10th Edn., 2006 at pp. 474 and 475.)
- 19 -
16. On close reading of the said paragraph it is made clear that the amended provision if it touches a right which was in existence then it will be applied prospectively and it should not be applied retrospectively.
Even in the case of Keshavan Madhava Menon Vs. State of Bombay (cited supra), it is not only express provision, but necessary implication has to be seen about the said interpretation. On going through the facts of the case on hand, there is no vested right acquired under the existing law to create a new obligation or imposes a new duty to the accused. Already there is a concurrent finding of both the Courts and even when he filed a revision petition before this Court and sought for stay, he voluntarily deposited 50% of the cheque amount including the amount which has already been deposited. In that light, it is necessary to refer to the statement of objections and reasons of enactment of Section 148 of the Act, which read as under:-
- 20 -
"The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realise the value of the cheque.
Such delays compromise the sanctity of cheque transactions.
2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured
- 21 -
cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy.
3. It is, therefore, proposed to introduce the Negotiable Instruments (Amendment) Bill, 2017 to provide, inter alia, for the following, namely:--
(i) to insert a new section 143A in the said Act to provide that the Court trying an offence under section 138 may order the drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summons case, where he pleads not guilty to the accusation made in the complaint; and in any other case, upon framing of charge. The interim compensation so payable shall be such sum not exceeding twenty per cent. of the amount of the cheque; and
- 22 -
(ii) to insert a new section 148 in the said Act so as to provide that in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent. of the fine or compensation awarded by the trial court.
4. The Bill seeks to achieve the above objectives"
17. On perusal of the reasons for enacting Section 148 of the Act, it discloses that cheque bounce cases are pending because of dishonour of cheques and there are delaying tactics of unscrupulous drawers of dishonours due to easy filing of appeals and obtaining the stay and in order to avoid injustice caused to the complainant and to provide a relief and to discourage frivolous and unnecessary litigations and to save the time of the Court, the proposed amendment has been made. With that letter and spirit, if Section 148 of the Act is read, then though the word used is "appellate Court", it also
- 23 -
includes this Court which is exercising all the powers as enumerated under Section 401 of Cr.P.C. This Court while considering the revision, can also exercise the power under Section 386 of Cr.P.C. and other incidental provisions. When the said enactment has been made as a beneficial legislation, to protect the interest of the complainant and to provide a relief and to avoid and discourage frivolous appeals and litigations, then under such circumstances, a wider interpretation has to be made and not a restricted interpretation as held in the case of S.L.Srinivasa Jute Twine Mills (P) Ltd. Vs. Union of India and Another (cited supra). It is not express provision which has to be taken into consideration but it can take even the necessary implication and give a retrospective operation. In that light, this Court can give the retrospective effect to the said Section. In that light, the contentions raised by the learned counsel for the accused is not acceptable. Though he has quoted the decision of the Panjab and Haryana High Court in the
- 24 -
case of Amandeep Singh Vs. Monika Batia (cited supra), wherein the detailed discussion of the issue has not been dealt with and the same is not applicable to the facts of the case on hand, by combined reading of the object and reasons and the statute with Section 401 of Cr.P.C., I am of the considered opinion that by implication, the statute can be given retrospective effect. Even though it is not specifically stated in the statute "revisional Court", but as stated above, this Court can also exercise the said power, this Court in the interest of justice, may treat the application for revision as a petition of appeal and deal with the same as contemplated under Section 401 of Cr.P.C. In that light, all the contentions which have been raised by the learned counsel for the accused are not sustainable in law and the same are rejected.
18. In that light, the trial Court is directed to release 20% of the amount in deposit made by the accused under Section 148 of the Act with condition that
- 25 -
if the accused is acquitted in this case, the complainant has to repay the said amount of 20% so released in favour of him with interest at the bank rate as on the date of release. The complainant has to execute an indemnity bond with two sureties for the like sum to the satisfaction of the trial Court to the effect that in the event of acquittal of the accused, he shall indemnify the said amount with interest at the bank rate as on the date of release of the amount.
With the aforesaid observations, I.A.No.3/2018 is disposed of.
Sd/-
JUDGE *ap/ck/-