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2019 DIGILAW 2190 (RAJ)

Budh Ram Regar v. Sanwar Mal Mochi

2019-08-14

MANOJ KUMAR GARG

body2019
JUDGMENT : MANOJ KUMAR GARG, J. Instant misc petition under Section 482 Cr.P.C. has been filed by the petitioner against the order dated 24.07.2019 passed by learned Additional Chief Judicial Magistrate, Nohar, District Hanumangarh in Criminal Case No. 401/2015 whereby, the petitioner was directed to deposit 20% of the cheque amount in the sum of Rs. 1,60,000/- within 2 months. 2. Counsel for the petitioner submits that the trial court has referred to the judgment of Hon'ble Apex Court in Criminal Appeal Nos 917-944 of 2019 (Arising out of SLP (Criminal) Nos 4948-4975/2019 Surinder Singh Deswal @ Col. S.S. Deswal v. Virender Gandhi, while passing the impugned order. Counsel for the petitioner argued that the Hon'ble Apex Court in a recent judgment in the case of G.J. Raja v. Tejraj Surana (Criminal Appeal No. 1160/2019 dated 30.07.2019 has held the 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 w.e.f 01.09.2018. Since the case is pending since last three years, therefore, the judgment cited by the trial court is not applicable to the case of the petitioner, therefore, the impugned order may be quashed and set aside. 3. Per contra, learned Public Prosecutor does not oppose the submissions made on behalf of the petitioner. 4. I have heard learned counsels for the parties and perused the material on record and gone through judgment passed by the Hon'ble Apex Court. 5. The question which arose before the Hon'ble Apex Court in the case of G.J. Raja, (Supra) was whether Section 143A of the Act is retrospective in operation and can be invoked in cases where the offences punishable Under Section 138 of the Act were committed much prior to the introduction of Section 143A. Hon'ble Apex Court after considering previous judgments including the case of Surinder Singh Deswal, (supra) held as under “14. In the present case, the Complaint was lodged in the year 2016 that is to say, the act constituting an offence had occurred by 2016 whereas, the concerned provision viz. Section 143A of the Act was inserted in the statute book with effect from 01.09.2018. In the present case, the Complaint was lodged in the year 2016 that is to say, the act constituting an offence had occurred by 2016 whereas, the concerned provision viz. Section 143A of the Act was inserted in the statute book with effect from 01.09.2018. The question that arises therefore is whether Section 143A of the Act is retrospective in operation and can be invoked in cases where the offences punishable Under Section 138 of the Act were committed much prior to the introduction of Section 143A. We are concerned in the present case only with the issue regarding applicability of said Section 143A to offences Under Section 138 of the Act, committed before the insertion of said Section 143A. ………… 22. In our view, the applicability of Section 143A of the Act must, therefore, be held to be prospective in nature and confined to cases where offences were committed after the introduction of Section 143A, in order to force an Accused to pay such interim compensation. 23. We must, however, advert to a decision of this Court in Surinder Singh Deswal v. Virender Gandhi, (2019) 8 SCALE 445 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 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 Sec. 143A of the Act. Therefore, the decision of this Court in Surinder Singh Deswal: (2007) 13 SCC 492 stands on a different footing. 24. 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 Sec. 143A of the Act. Therefore, the decision of this Court in Surinder Singh Deswal: (2007) 13 SCC 492 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.” 6. In view of above, the present misc. petition is allowed. The impugned order dated 24.07.2019 is not sustainable and same is hereby quashed and set aside. The trial court is directed to conclude the trial expeditiously.