Anil
Kumar Goel Vs. Kishan Chand Kaura [2007] Insc 1256 (12 December 2007)
Dr.
Arijit Pasayat & Aftab Alam
(Arising
out of SLP (Crl.) No. 2429 of 2006) Dr. ARIJIT PASAYAT, J.
1.
Leave granted.
2.
Challenge in this appeal is to the order passed by a learned Single Judge of
the Punjab and Haryana High Court dismissing the application filed in terms of
Section 482 of the Code of Criminal Procedure, 1973 (in short the Cr.P.C.).
Appellant
had filed a petition for quashing the complaint filed by the respondent in
terms of Section 138 of the Negotiable Instruments Act, 1881 (in short the
Act) In the complaint it was averred that a cheque was issued by the
appellant on 31.3.1998 which was dishonoured by the bank when presented on
11.4.1998. Notice dated 27.4.1998 was duly served on the appellant. Since the
accused appellant assured that the cheque will be honoured if it is presented
again, the cheque was presented but was again dishonoured on 30.9.1998 for
which notice dated 13.10.1998 was again served on the appellant. But no payment
was made. Appellant filed an application in terms of Section 245 of the Code of
Criminal Procedure, 1973 (in short the Cr.P.C.) before the trial
court for discharge. It was averred that the application was clearly barred by
time and therefore the said application ought to be dismissed at the outset.
The motion was opposed by the respondent. The learned Judicial Magistrate
dismissed the application stating that in view of the judgment in Adalat Prasad
v. Rooplal Jindal and Others [2004 (7) SCC 338], the trial court cannot review
or reconsider the order issuing process; once process has been issued pursuant
to an order passed in a complaint case. Appellant filed a petition in terms of
Section 482 Cr.P.C. which as noticed above was dismissed.
It is
to be noted that the only stand of the appellant before the High Court was that
even if the position as stated by the respondent is accepted to be correct, in
view of Section 142 B of the Act, a complaint was not to be entertained. High Court
dismissed the application on the ground that proviso of Section 142 (b) of the
Act was inserted vide Act 55 of 2002 which empowered the court to extend the
period of limitation on sufficient cause being shown. Therefore, the petition
was to be dismissed.
3. In
support of the appeal, learned counsel for the appellant submitted that the
amendment inserted by Act 55 of 2002 had no application to the facts of the
case as the various events took place much prior to 2002 and in fact the
complaint was filed on 28.11.1998. It was further pointed out that the case of
respondent was not that case in hand was covered by the amendment. There is no
such plea taken. The High Court could not have made out a new case.
4.
There is no appearance on behalf of the respondent.
5. For
resolution of the controversy Sections 138 and 142 of the Act are relevant.
They read as follows:
"Section
138:
Dishonour
of cheque for insufficiency, etc. of funds in the account - Where any cheque
drawn by a person on an account maintained by him with a banker for payment of
any amount of money to another person from out of that account for the
discharge, in whole or in part, of any debt or other liability, is returned by
the bank unpaid, either because of the amount of money standing to the credit
of that account is insufficient to honour the cheque or that it exceeds the
amount arranged to be paid from that account by an agreement made with that
bank, such person shall be deemed to have committed an offence and shall,
without prejudice to any other provision of this Act, be punished with
imprisonment for a term which may extend to one year, or with fine which may
extend to twice the amount of the cheque, or with both:
Provided
that nothing contained in this section shall apply unless –
(a) the
cheque has been presented to the bank within a period of six months from the
date on which it is drawn or within the period of its validity, whichever is
earlier;
(b)
the payee or the holder in due course of the cheque, as the case may be, makes
a demand for the payment of the said amount of money by giving a notice in
writing, to the drawer of the cheque, within fifteen days of the receipt of
information by him from the bank regarding the return of the cheque as unpaid;
and
(c) the
drawer of such cheque fails to make the payment of the said amount of money to
the payee or as the case may be, to the holder in due course of the cheque
within fifteen days of the receipt of the said notice.
Explanation - For the purposes of this section,
debt or other liability means a legally enforceable debt or other
liability.
Section
142:
Cognizance
of offences - Notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (2 of 1974), -
(a) no
court shall take cognizance of any offence punishable under Section 138 except
upon a complaint, in writing, made by the payee or, as the case may be, the
holder in due course of the cheque;
(b) such
complaint is made within one month of the date on which the cause of action
arises under clause (c) of the proviso to Section 138;
(Provided
that the cognizance of a complaint may be taken by the Court after the
prescribed period, if the complainant satisfies the Court that he had
sufficient cause for not making a complaint within such period.)
(c) no
court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of
the first class shall try any offence punishable under Section 138.
6.
Before the amendment, the proviso, as quoted above, was not there. Clause (a)
of the proviso to Section 138 does not put any embargo upon the payee to
successively present a dishonoured cheque during the period of its validity.
This apart, in the course of business transactions it is not uncommon for a cheque
being returned due to insufficient funds or similar such reasons and being
presented again by the payee after sometime, on his own volition or at the
request of the drawer, in expectation that it would be encashed. The primary
interest of the payee is to get his money and not prosecution of the drawer,
recourse to which, normally, is taken out of compulsion and not choice. On each
presentation of the cheque and its dishonour, a fresh right- and not a cause of
action - accrues in his favour. He may, therefore, without taking pre-emptory
action in exercise of his such right under clause (b) of Section 138, go on
presenting the cheque so as to enable him to exercise such right at any point
of time during the validity of the cheque.
7.
Section 5 of the General Clauses Act, 1897 (in short the General Clauses
Act) also throws considerable light on the controversy. Section 5 reads as
follows:
5.
Coming into operation of enactments
(1)
Where any Central Act is not expressed to come into operation on particular
day, then it shall come into operation on the day on which it receives the
assent,-
(a) In
the case of a Central Act made before the commencement of the Constitution of
the Governor-General and
(b) In
the case of an Act of Parliament of the President.
(c)
Unless the contrary is expressed a Central Act or Regulation shall be construed
as coming into operation immediately on the expiration of the day preceding its
commencement.
8. All
laws that affect substantive rights generally operate prospectively and there
is a presumption against their retrospectivity if they affect vested rights and
obligations, unless the legislative intent is clear and compulsive. Such
retrospective effect may be given where there are express words giving
retrospective effect or where the language used necessarily implies that such
retrospective operation is intended. Hence the question whether a statutory
provision has retrospective effect or not depends primarily on the language in
which it is couched. If the language is clear and unambiguous, effect will have
to be given to the provision is question in accordance with its tenor. If the
language is not clear then the court has to decide whether, in the light of the
surrounding circumstances, retrospective effect should be given to it or not.
(See: M/s Punjab Tin Supply Co., Chandigarh etc. etc. v. Central Government and
Ors. AIR 1984 SC 87).
9.
There is nothing in the amendment made to Section 142(b) by the Act 55 of 2002
that the same was intended to operate retrospectively. In fact that was not
even the stand of the respondent. Obviously, when the complaint was filed on
28.11.1998, the respondent could not have foreseen that in future any amendment
providing for extending the period of limitation on sufficient cause being
shown would be enacted.
10.
That being so the High Courts view is clearly unacceptable. The impugned
order of the High Court is set aside. The proceeding pursuant to
respondents complaint i.e. Complaint No.120 of 1998 in the Court of JMIC,
Chandigarh, is quashed.
11.
The appeal is allowed.
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