Himachal Pradesh High Court
Vinod Kumar vs Mukesh Kumar on 13 November, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CrMMO No. 681 of 2019 Decided on: November 13, 2019
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Vinod Kumar .........Petitioner
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Versus
Mukesh Kumar ....Respondent
----------------------------------------------------------------------------- Coram Hon'ble Mr. Justice Sandeep Sharma, Judge Whether approved for reporting?1
----------------------------------------------------------------------------- For the petitioner Mr. Mohar Singh, Advocate.
For the respondent: Nemo.
----------------------------------------------------------------------------- Sandeep Sharma, Judge Having regard to the nature of order, this Court proposes to pass in the instant petition, there is no need to issue notice to the respondent, as it would unnecessarily burden him with the expenses of engaging services of a counsel to defend him in the instant proceedings.
2. Precisely the question, which needs determination in the present controversy is whether the provisions of S.143A of the Negotiable Instruments Act (hereinafter, 'Act') are prospective in operation or same can be applied to the proceedings, which were pending adjudication prior to introduction of aforesaid provision in the statute books.
3. Grouse of the petitioner is that since the aforesaid provision came to be inserted by way of Amendment Act No. 20 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 13/11/2019 20:25:54 :::HCHP 2of 2018, learned Court below has erred in directing the petitioner-accused (hereinafter, 'accused') to pay an interim compensation amounting to Rs.50,000/- in the proceedings, which admittedly came to be initiated at the behest of the .
respondent-complainant (hereinafter, 'complainant') in the year 2013. Averments contained in the petition reveal that a cheque baring No. 678819, dated 8.8.2013, amounting to Rs.5,00,000/- drawn on Punjab National Bank Branch, Lift Road, Shimla was allegedly issued by the accused in the year 2013 but since the same was dishonoured on account of insufficient funds, complainant instituted proceedings under S.138 of the Act in the court of learned Judicial Magistrate 1st Class, Arki, District Solan in the year 2013, but, subsequent to a judgment rendered by Hon'ble Apex Court, wherein it was held that a complaint under S.138 of the Act can be filed within the jurisdiction of the Court/Magistrate, where bank account of accused is instituted, case filed by the complainant came to be transferred to the Courts at Shimla. During the pendency of the case before learned Court below, Hon'ble Apex Court in yet another case ruled that a complaint under S.138 of the Act can be filed within the jurisdiction of the Court, where account of the complainant is situate, as such, case having been filed by the complainant again came to be ::: Downloaded on - 13/11/2019 20:25:54 :::HCHP 3 transferred back to learned Judicial Magistrate 1st Class, Arki, on 14.9.2017.
4. Though a perusal of the Zimni orders placed on records suggests that the case filed at the behest of the complainant .
came to be lodged/registered in the year 2017, but as has been take note herein above case was originally instituted in the year 2013, but same remained pending in various courts at Solan and Shimla, on account of subsequent judgments rendered by Hon'ble Apex Court, with regard to jurisdiction of the courts trying the complaint under S.138 of the Act.
5. Leaving everything aside, S. 143A, whereby provision has been provided for payment of interim compensation during the pendency of proceedings under S.138 of the Act, came into force with effect from 1.9.2018, by way of Amending Act No. 20 of 2018.
6. Hon'ble Apex Court in case titled G.J. Raja vs. Tejraj Surana, Cr. Appeal No. 1160 of 2019, decided on 30.7.2019, has categorically held that S.143A is prospective in operation.
Hon'ble Apex Court has categorically held in the aforesaid judgment that provisions of S.143A can be applied/invoked only in cases, wherein offence under S.138 was committed after introduction of S.143 in the Statute Book. Reference is made to following paras of aforesaid judgments:
"23. We must, however, advert to a decision of this Court in Surinder Singh Deswal and Ors. vs. Virender ::: Downloaded on - 13/11/2019 20:25:54 :::HCHP 4 Gandhi6 where Section 148 of the Act which was also introduced by the same Amendment Act 20 of 2018 from 01.09.2018 was held by this Court to be retrospective in operation. As against Section 143A of the Act which applies at the trial stage that is even before the .
pronouncement of guilt or order of conviction, Section 148 of the Act applies at the appellate stage where the accused is already found guilty of the offence under Section 138 of the Act. It may be stated that there is no provision in Section 148 of the Act which is similar to 5 (2007) 13 SCC 492 6 (2019) 8 SCALE 445 Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019 G.J. Raja vs. Tejraj Surana Sub-Section (5) of Section 143A of the Act. However, as a matter of fact, no such provision akin to sub-section (5) of Section 143A was required as Sections 421 and 357 of the Code, which apply post-
conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act.
Therefore, the decision of this Court in Surinder Singh Deswal5 stands on a different footing.
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 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."::: Downloaded on - 13/11/2019 20:25:54 :::HCHP 5
7. Consequently, in view of above, impugned order dated 15.10.2019 passed by learned Judicial Magistrate 1st Class, Arki, District Solan, Himachal Pradesh in Case No. 187/3 of 17, is set aside. Petition stands disposed of accordingly .
alongwith all pending applications.
8. Since matter is hanging fire since the year 2013, this Court hopes and trusts that learned Court below would make all out efforts to conclude the trial expeditiously, preferably within six months from today.
An authenticated copy be supplied to learned counsel for the petitioner.
(Sandeep Sharma) Judge November 13, 2019 (Vikrant) ::: Downloaded on - 13/11/2019 20:25:54 :::HCHP