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M/s. Rajya Dharma A Proprietorship Concern, Rept. by its Proprietor, Mahi Mahesh, Mysuru & Another v/s M/s. Adesign Solutions, Rept. by GPA Holder Ankur Gupta

    Criminal Petition Nos. 8842, 8844 of 2019

    Decided On, 13 January 2020

    At, High Court of Karnataka

    By, THE HONOURABLE MR. JUSTICE B.A. PATIL

    For the Petitioner (Common): V.B. Siddaramaiah, Advocate. For the Respondent (Common): S.D. Ashwath, Advocate.



Judgment Text

(Prayer: These Criminal Petitions are filed under Section 482 of Cr.P.C praying to (a) Set aside the order dated 04.02.2019 passed to pay 20 percentage of Cheque amount to the respondent, passed by the Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru passed in C.C.No.9330/2017 & C.C.No.9771/2017, registered for the alleged offence under Sections 138 and 142 of NI Act on the complaint of the respondent and etc.)Common Order1. These criminal petitions have been filed by the petitioner/accused challenging the order dated 04/2/2019 passed by the Chief Judicial Magistrate, Bengaluru Rural District, Bengaluru in C.C.No.9771/2017 and C.C.No.9330/2017 for the offences punishable under Section 138 and 142 of the Negotiable Instruments Act, 1881 (‘the Act’ for short).2. I have heard the learned counsel for the petitioner/accused and the learned counsel for the respondent/complainant.3. Though these two cases are listed for orders, with the consent of the learned counsel appearing for the parties, the same are taken up for final disposal. Since two cases are arising out the same fact and law, they have been clubbed together and disposed off by a common order.4. The factual matrix of the case is that some amount was due from the petitioner/accused, the respondent/complainant demanded the petitioner/accused to clear the outstanding amount. In pursuance of the demand, the petitioner/accused has issued eight cheques and when the said cheques were presented, they were dishonored with the shara “insufficient funds” and thereafter, the legal notice was issued and though the legal notice is served, the petitioner/accused did not paid the amount and as such, the respondent/complainant filed PCR.Nos.434/2017 and 433/2017 respectively before the learned Chief Judicial Magistrate, Bengaluru. Subsequently, sworn statement of the GPA Holder of the respondent/complainant was recorded and the case has been registered in C.C.No.9771/2017 & C.C.No.9330/2017. Thereafter, the GPA Holder was examined as PW.1 and subsequently, the learned Magistrate, by impugned order dated 04.02.2019 by exercising the power under Section 143A of the Negotiable Instruments (Amendment)Act, 2018 (‘the Amendment Act’ for short), directed to pay interim compensation of 20% of the cheque amount, within a period of 60 days from the date of the order. Challenging the same, the petitioner/accused is before this Court.5. It is the contention of the learned counsel for the petitioner/accused that there is no business transactions and he is not liable to pay any amount. It is his further submission that the order passed by the Court below is not sustainable in law. He further submits that the amendment to Section 143A the Amendment Act has come into force on 02.08.2018, but the present case has been filed and registered in the year 2017. The said notification cannot be given retrospective effect and as such, the said order is not sustainable in law. It is his further submission that though the said provision is not attracted to the pending proceedings, the trial Court has erroneously passed the impugned order. On these grounds, he prayed to allow the petitions and to set aside the impugned order.6. Per contra, learned counsel for the respondent/complainant vehemently argued and submitted that the impugned order and the materials placed on record clearly goes to show that the accused has not shown any diligence and he has remained absent and even the proclamation has also been issued against petitioner/accused. It is his further submission that the said application to recall the NBW has also been rejected with costs. Taking into consideration the conduct of the accused, the trial Court has passed the impugned orders to deposit 20% of the cheque amount. There is no illegality or irregularity, the same may be confirmed by dismissing the petition. On these grounds, he prayed to dismiss the petitions.7. I have carefully and cautiously gone through the submissions made by the learned counsel appearing for the parties and perused the records.8. The only point which has been raised by the learned counsel for the petitioner/accused is; ‘whether the provisions of Section 143A of the Negotiable Instruments Act, 1881 amended on 02.08.2018 will have any retrospective effect?’For the purpose of brevity, I quote Section 143A of the Negotiable Instruments Act, 1881, which reads as under;‘‘143A. 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 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).(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.’’9. On going through the records, it indicates that the complaint has been registered on 13.09.2017 and thereafter, cognizance has been taken and C.C. number has been given. It is well settled proposition of law by the Hon’ble Apex Court that the provisions of Section 143A of the Act is not having retrospective effect and it has to be given prospective effect. This proposition of law has been laid down in the case of SURINDER SINGH DESWAL @ COL. S.S. DESWAL & ORS. v. VIRENDER GANDHI & ANR. reported in2020 SCC ONLINE SC 18,wherein at paragraph Nos.14 and 16, it has been held as under;“14. Learned counsel for the appellant has placed reliance on the judgment of this Court dated 30.07.2019 in Criminal Appeal No.1160 of 2019 (G.J. Raja vs. Tejraj Surana). This Court in the above case was considering provisions of Section 143A of the N.I. Act which was inserted by the same Amendment Act 20 of 2018 by which Section 148 of the N.I. Act has been inserted. This Court took the view that Section 143A is prospective in nature and confined to cases where offences were committed after the introduction of Section 143A i.e. after 01.09.2018.In paragraph 22 of the judgment following has been held:“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.”16. The Bench deciding G.J. Raja’s case has noticed the judgment of this Court in the appellants’ case i.e. Surinder Singh Deswal’s case and has opined that the decision of this Court in Surinder Singh Deswal’s case was on Section 148 of the N.I. Act which is a stage after conviction of the accused and distinguishable from the stage in which the interim compensation was awarded under Section 143A of the N.I.Act. When the Bench deciding G.J. Raja’s case(supra) itself has considered and distinguished the judgment of this Court in appellants’ own case i.e. Surinder Singh Deswal’s, reliance by the learned counsel for the appellants on the judgment of this Court in G.J. Raja’s case is misplaced. It is useful to refer to paragraph 23 of the judgment in G.J. Raja’s case which is to the following effect:“23. We must, however, advert to a decision of this Court in Surinder Singh Deswal and Ors. 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-c

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onviction, 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 Deswal, (2007) 13 SCC 492 stands on a different footing.”Under such circumstances, I am of the considered opinion that the order dated 04.02.2019 is not sustainable in accordance with law. Taking into consideration the above said facts and circumstances, Criminal petitions are allowed and the order dated 04.02.2019 is set aside. But however, the trial Court is at liberty to proceed in accordance with law and it has been made clear that the petitioner/accused has to cooperate and appear before the Court below without fail as and when case is listed except on just cause.The trial Court is directed to expedite the trial expeditiously within a period of eight months from the receipt of this order.
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