M/S. Shri Mata Bala Sundri Lightings At Village Ogli, Nahan Road Kala Amb vs M/S. Mahadev Enterprises Registered Office At Village And P.O Sainwala

Anoop Chitkara, J

Challenging the order dated 16.4.2019 passed by learned JMFC, Nahan to the extent of asking the accused to deposit 20% of the cheque amount, the accused has come up before this Court under Section 482, Code of Criminal Procedure, 1973 read with Article 227 of the Constitution of India.

I have heard Mr. Karan Singh Kanwar, Advocate for the petitioner(s) and Ms. Shalini Thakur, Advocate, for the respondent(s) and have gone through the Court files and the pleadings.

ANALYSIS AND FINDING

The brief controversy involved in this case is that after taking cognizance of the complaint filed under Section 138 of the Negotiable Instruments Act, learned JMFC, Nahan directed the accused to remain present on 16.4.2019.

After perusal of the complaint, learned JMFC, Nahan found the prima facie case and proceeded to issue notice of accusation for offence punishable under Section 138 of the Negotiable Instruments Act. Apart from that, the learned JMFC, Nahan directed the accused to deposit 20% of the cheque amount before the next date.

Aggrieved by the said order directing to deposit 20% of the cheque amount, the accused has come up before this Court.

A perusal of the complaint, which is Annexure P-3, reveals that the cheque in question was issued on 3.9.2017. When the drawee presented the same, it bounced because of insufficient funds, which led to filing of the present complaint.

With effect from 01.09.2018, Section 143A was inserted in the Negotiable Instruments Act by Amendment Act 20 of 2018. Said Section is to the following effect:-

"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."

It remains undisputed that the cheque in question was issued prior to this amendment. The fundamental right enshrined in Article 20(1) of the Constitution of India guarantees that no person shall be convicted of any offence except for violation of a law in force at the time of commission of the said Act. Thus, the present amendment which had come into force w.e.f. 1.9.2018 by introducing Section 143A in Negotiable Instruments Act was subsequent to the date when the accused had signed the cheque. Thus the impugned order is violation of the fundamental right guaranteed to the accused under Article 20(1) of the Constitution of India and the same is quashed and set aside accordingly.

In G.J. Raja v. Tejraj Surana, (2019) 19 SCC 469, Hon'ble Supreme Court held that 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.

Given above, the petition is allowed. The impugned order to the extent mentioned above is set aside. Pending applications, if any, are also closed.