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2024 DIGILAW 69 (JK)

Beeka Mohd. v. Mukesh Kumar

2024-02-26

SINDHU SHARMA

body2024
JUDGEMENT 1. Petitioner has invoked the inherent jurisdiction of this Court under section 482 Cr.P.C. for quashing order dated 25.07.2019 passed by the learned Principal Sessions Judge, Kathua, in criminal appeal titled 'Beeka Mohd. alias Vicky vs. Mukesh' along with order dated 23.03.2019, passed by the learned District Judicial Mobile Magistrate (T), Kathua in a complaint titled 'Mukesh Kumar vs. Beeka Mohd. alias Vicky'. 2. A complaint under section 138 of the Negotiable Instrument Act (hereinafter referred to as 'the Act') was filed by the respondent-Mukesh Kumar against the petitioner-Beeka Mohd. for dishonor of two cheques bearing Nos. 377762 & 377763, dated 14.01.2018, for an amount of Rs. 8 lacs and Rs. 5 lacs. The learned Magistrate took cognizance of the offence and issued process against the petitioner. The petitioner appeared in response to the same and pleaded not guilty and the complainant/ respondent was directed to lead evidence. 3. The learned Magistrate invoked its jurisdiction under section 143-A of Negotiable Instrument Act (Amendment) Act, 2018 and directed the petitioner to pay 20% of the cheque amount i.e. Rs. 2,60,000/- to the complainant within a period of 60 days, from the date of passing of the order, i.e. 22.03.2019. 4. The petitioner, aggrieved of the aforesaid order, preferred an appeal before the Court of learned Principal Sessions Judge, Kathua. The appeal was treated as revision petition and was dismissed vide impugned order dated 25.07.2019, by holding that the order does not suffer from any illegality to warrant exercise of revisional jurisdiction. 5. The legality of the impugned order has been assailed by the petitioner on the ground that the alleged offence is said to have been committed on 27.08.2018, much before the introduction of Section 143A of the Act through Amendment Act 20 of 2018 on 01.09.2018, which is prospective in nature and cannot be applied retrospectively to cases where the offence was committed after the amendment. 6. 6. The learned Revisional Court, while accepting the fact that the complaint under section 138 of the N.I. Act was filed before Section 143A of the Act was introduced by the Act by way of an amendment in 2018, but held that since the Amendment/Act is silent whether the same is to be applied retrospectively or prospectively and relied upon the judgment of the Hon'ble Supreme Court in “[1]Surinder Singh Deswal vs. Virender Gandhi” reported as AIR 2019 SC 2956 , wherein the applicability of Section 143A was not directly in question but application of Section 148 was for determination and since Section 148 also came to be introduced through the same amendment, which introduced Section 143A, the objects for the amendment were same, therefore, the Hon'ble Supreme Court dealt with the same and held that the provisions contained in Section 143A are applicable retrospectively. [2]Relevant Para-4 is reproduced as under:- “4. The effect of section 143A of the Negotiable Instrument Act regarding its applicability to the pending cases, need not require a very detailed discussion and this court can safely adopt the very same reasoning given by the Hon'ble Supreme Court in the above judgment. The amendment through which section 143A was brought into force will be applicable even pending proceedings. If such a purposive interpretation is not given to this provision, it will defeat the very purpose of amendment which was brought in as a beneficial piece of legislation for the complainant prosecuting a criminal complaint under section 138 of the Negotiable Instrument Act.” 7. The Revisional Court, considering aforementioned aspects and judgment in “L.G.R. Enterprises and another vs. P. Anbazhagan”, CrL.O.P. No. 15438 of 2019 and 15440 of 2019 & CrL.M.P. Nos. 7576 and 7578 of 2019 held that the order of the trial Court is supported by reasons and held that the impugned order is not assailable by reasons on this ground only and cannot be held illegal. 8. The issue regarding the applicability of Section 143A of the Act being prospective in nature has now been settled by the Hon'ble Apex Court in [3]G.J. Raja vs. Tejraj Surana (Criminal Appeal No. 1160 of 2019) in which it has been held as under:- “4. 8. The issue regarding the applicability of Section 143A of the Act being prospective in nature has now been settled by the Hon'ble Apex Court in [3]G.J. Raja vs. Tejraj Surana (Criminal Appeal No. 1160 of 2019) in which it has been held as under:- “4. 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.” 9. The Hon'ble Supreme Court while noticing the judgment of Surinder Singh Deswal (supra), where Section 148 of the Act was also introduced and same Amendment Act 20 of 2018 from 01.09.2018 was held by this Court to be retrospective in operation and in an ultimate analysis held that Section 143A is prospective in operation and can be applied or invoked in those only where the offence under section 138 of the Act was committed after the introduction of said Section 143A in the Statue book. 10. Both the cheques were issued on 14.01.2018 and the offence was admittedly committed by the petitioner on 27.04.2018 when he failed to comply with the demand notice dated 05.04.2018 and the complaint was filed on 26.05.2018 much before the amendment was notified, therefore, Section 143A of the Act being prospective in operation could not have been invoked to award interim compensation. 11. The Revisional Court, upholding the order dated 25.07.2019, granting interim compensation after the introduction of Section 143A is bad and is required to be set aside. 12. In view of the aforesaid discussion, Section 143A being prospective in operation, there is merit in this petition and the same is, accordingly, allowed. Consequently, the orders passed by the trial Court on 23.03.2019 and 25.07.2019 are set aside. However, the complaint is pending since 2018, therefore, the trial Court is directed to deal with the complaint expeditiously in accordance with law. 13. Disposed of.