Himachal Pradesh High Court
Sh. Shyam Lal vs Sh. Diwan Chand And Another on 27 September, 2019
Author: Anoop Chitkara
Bench: Anoop Chitkara
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
Cr. Revision No.353/2019
Order reserved on : 6.9.2019
Date of Order : 27.09.2019
Sh. Shyam Lal ... Petitioner.
Versus
Sh. Diwan Chand and another ...Respondents
Coram:
Whether approved for reporting?1 YES
r to
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
For the Petitioner : Mr. Vaibhav Tanwar, Advocate.
For the Respondents : Ms. Meera Devi, Advocate, for Respondent
No.1.
Mr. Nand Lal Thakur, Additional Advocate
General, for Respondent No.2/ State.
Ms. Shradha Karol and Ms. Richa Thakur,
Advocates, as Amicus Curiae.
Anoop Chitkara, Judge
ORDER
The petitioner, who is a convict under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the N.I. Act'), has come up before this Court, by way of the present 1 Whether reporters of Local Papers may be allowed to see the judgment?
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Criminal Revision Petition, under Sections 397 and 401 of the Code .
of Criminal Procedure.
2. The accused/convict, who allegedly deals in the sale of agricultural products, issued two cheques, amounting to Rs.20,000/ each, dated 11.7.2011 in favour of the 1st respondent, Diwan Chand, in lieu of sale of vegetable (Broccoli). However, when the cheques were presented for encashment, the same were dishonoured for want of sufficient funds. Consequently, the 1st respondent issued a notice to the petitioner, asking him to make the payment. However, neither the payment was made nor any reply was given to such notice. Consequently, the complainant who is the 1st Respondent, filed a complaint under Section 138 of the Act.
3. After completion of trial, the learned Judicial Magistrate 1st Class, Karsog, District Mandi, vide judgment dated 26.11.2013, convicted the accused and sentenced him to undergo simple imprisonment for a period of three months and to pay a compensation of Rs.40,000/ to the complainant. In default of payment of compensation, the accused was directed to undergo ::: Downloaded on - 30/09/2019 20:25:20 :::HCHP ...3...
further simple imprisonment for a period of one month. Feeling .
aggrieved, the convict/petitioner, challenged the said judgment, by way of an appeal, under Section 374 of the Code of Criminal Procedure, filed in the Court of learned Additional Sessions Judge-1, Mandi, HP, camp at Karosog. Vide judgment dated 8.4.2019, learned Additional Sessions Judge, Mandi, Camp at Karsog, dismissed the appeal. Now, the convict has come up before this Court, challenging the judgment of conviction.
4. Vide order dated 23.8.2019, this Court had issued notice, returnable for 30.8.2019, on which date, the complainant was represented by a Counsel. Vide order dated 30.8.2019, this Court suspended the sentence. However, this Court also ordered as follows:-
"In this matter proposition of law has emerged that in view of the amendment of the Negotiable Instruments Act, 1881, in the year 2018 whether the mandate of Section 143-A of the Act is retrospective in nature or only prospective i.e. after the amendment. On this proposition, Ms. Shradha Karol and Ms Richa Thakur, Advocates, are appointed to assist the Court as amicus curiae. Learned counsel for the parties shall also assist the Court on this issue."::: Downloaded on - 30/09/2019 20:25:20 :::HCHP
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5. On the Proposition of Law, I have heard Mr. Vaibhav .
Tanwar, learned counsel for the petitioner, Ms Meera Devi, learned Ccounsel for the 1st respondent and Mr. Nand Lal Thakur, learned Additional Advocate General, for the 2nd respondent/State. I have also heard Ms. Shradha Karol and Ms. Richa Thakur, learned Advocates, who assisted this Court as Amicus Curiae.
6. Vide Act No.20 of 2018, the N.I. Act, was amended by the Parliament and Sections 143A and 148 were inserted. The amendments came into effect from 1.9.2018 vide S.O. 3995 (E), dated 16.8.2018.
7. Section 143A deals with the cases which are pending trial and Section 148 of the N.I. Act deals with the cases which are in appeal. There is no amendment, in respect of the revisionary jurisdiction of the High Courts under Sections 397 and 401 of CrPC.
8. It shall be appropriate to extract Sections 143A and 148 of the Act, which is as follows:-
"143 A. 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 ::: Downloaded on - 30/09/2019 20:25:20 :::HCHP ...5...
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."
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, 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 ::: Downloaded on - 30/09/2019 20:25:20 :::HCHP ...7...
interest at the 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."
9. Miss Shradha Karol, learned Amicus Curiae has drawn attention of this Court to the pronouncement of the Hon'ble Supreme Court in G.J. Raja versus Tejraj Surana, 2019 SCC OnLine SC 989, decided on 30.07.2019, in which it was held that Section 143-A of the N.I. Act is applicable to all the offences committed on or after 01 Sep 2018 and further clarified that the said Section could be applied or invoked only in those complaints where the offence under Section 138 of the N.I. Act was committed after the amendment of the N.I. Act, i.e. w.e.f. 1st September, 2018. It shall be appropriate to extract the relevant portion of the law laid down by the Hon'ble Supreme Court in the aforesaid case, which reads as follows:
"24. In the ultimate analysis, we hold Section 143A to be prospective in operation and that the provisions of said Section 143A can be applied or invoked only in cases where the offence under Section 138 of the Act was ::: Downloaded on - 30/09/2019 20:25:20 :::HCHP ...8...
committed after the introduction of said Section 143A in the statute book.
.
Consequently, the orders passed by the Trial Court as well as the High Court are required to be set aside. The money deposited by the Appellant, pursuant to the interim direction passed by this Court, shall be returned to the Appellant along with interest accrued thereon within two weeks from the date of this order."
10. In view of the pronouncement of the Hon'ble Supreme Court on amended Section 143-A of N.I. Act, this proposition of law does not survive because the law is no more res integra.
11. Ms. Richa Thakur, learned Amicus Curiae has drawn the attention of this Court to a pronouncement of the Hon'ble Supreme Court in Surinder Singh Deswal @ Col. S.S. Deswal v. Virender Gandhi, 2019 STPL 5376 SC, decided on 29.5.2019. This judgment is exactly on the proposition of law which this Court had proposed to settle and Hon'ble Supreme Court holds that Section 148 of the N.I. Act, as amended, shall be applicable in respect of all the appeals filed against the conviction under section 138 of N.I.Act, even if the complaints were filed prior to 01 Sep 2018. It means that the amended provision of S. 148 applies to all Criminal Appeals filed on or after 1st Sep 2018, against conviction under ::: Downloaded on - 30/09/2019 20:25:20 :::HCHP ...9...
N.I.Act. The relevant portion of the proposition of law laid down by .
the Hon'ble Supreme Court in the aforesaid case is extracted as follows:
8.1 Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of section 138 of the N.I. Act was being frustrated, the Parliament has thought it fit to amend section 148 of the N.I. Act, by which the first appellate Court, in an appeal challenging the order of conviction under section 138 of the N.I. Act, is conferred with the power to direct the convicted accused - appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. By the amendment in section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused - appellant has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in section 148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to cases/complaints filed prior to 1.9.2018 shall not be applicable has no substance and cannot be accepted, as by amendment in section 148 of the N.I. Act, no substantive right of appeal has been taken away and/or affected. Therefore the decisions of this Court in the cases of Garikapatti Veeraya (supra) and Videocon International Limited (supra), relied upon by the learned senior counsel appearing on behalf of the appellants shall not be applicable to the facts of the case on hand.
Therefore, considering the Statement of Objects and Reasons of the amendment in section 148 of ::: Downloaded on - 30/09/2019 20:25:20 :::HCHP ...10...
the N.I. Act stated hereinabove, on purposive interpretation of section 148 of the N.I. Act as .
amended, we are of the opinion that section 148 of the N.I. Act as amended, shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under section 138 of the N.I. Act, even in a case where the criminal complaints for the offence under section 138 of the N.I. Act were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018. If such a purposive interpretation is not adopted, in that case, the object and purpose of amendment in section 148 of the N.I. Act would be frustrated. Therefore, as such, no error has been committed by the learned first appellate court directing the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court considering section 148 of the N.I. Act, as amended.
12. Resultantly, the proposition of law, which this Court proposed to settle, is no more res integra in view of the authoritative pronouncements of the Hon'ble Supreme Court.
Therefore, no order is required to be passed, at this stage.
13. The Court expresses its gratitude to both Ms. Shradha Karol and Ms. Richa Thakur, Advocates, who assisted this Court as Amicus Curiae, did extensive research on the amendments and presented the legal position accurately.
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13. Both the learned Amicus Curiae are thus discharged .
from this case. Registry is directed not to reflect their names in this case henceforth.
14. List the matter for final hearing on its own merits, in the month of October, 2019, immediately after Dussehra Holidays.
27th September, 2019
to (Anoop Chitkara),
Judge.
(Hemlata/KS)
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