Krishan Kumar v. Gharda Chemicals Limited And Another
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)* )* () *is contrary to law and liable to be set aside. It is submitted that the newly added Sections 148 and 143A of the NI Act came into force on 1st September, 2018, whereas the appeal had been filed in the year, 2017, that is, before the said amendment, hence, the matter did not fall in the ambit of the same, since the amended provisions are not retrospective for appeals filed prior to the amendment.
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Learned counsel for the petitioner furhter submits that the impugned order passed by the learned Addl. Sessions Judge, Hisar suffers from severe illegalities, perverse, against the settled principles of law and hence, liable to be set aside.
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in accordance with the provisions of the Act as well as with the interpretation given by the Hon'ble Supreme Court in various cases. It is submitted that there is no doubt to the fact that the amendment that came into force on 1st September, 2018, thereby, introducing Section 148 to the NI Act, is retrospective in nature. The position is clear in light of the judgments of Surender
1 Singh Deswal (2019), Surender Singh Deswal @ Col S.S. Deswal & Ors vs. Virender Gandhi, (2020) 2 SCC 514. Hon'ble Supreme Court has made it clear that relief under Section 148 of the NI Act would be available to the complainant even in cases where the complaint case has been filed prior to the amendment. The interpretation of the Hon'ble Supreme Court, to the effect that Section 148 of the NI Act is applicable even for the complaints filed before the amendment, suggests that the appellant before the Court in an appeal arising out of a complaint filed before the amendment could be subjected to the provisions of Section 148 of the NI Act. Meaning thereby, that Section 148 will be applicable to an appeal arising out of complaint prior to the amendment, irrespective of being filed before or after the amendment.
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It is further submitted that there is no bar on limitation or with respect to the stage at which Section 148 may be invoked. Section 148 of the NI Act is to be given purposive interpretation to include complaint cases and appeals filed before the amendment in its purview in order to give force to the objectives as stated in the Statement of Objects and Reasons of the amendment. The purpose of introducing Section 148 of the NI Act is to avoid frivolous and ingenuine appeals and the same has to be given effect by extending the application of the provision to appeals that arise from complaints filed before the amendment was brought about. Hence, any appeal at any point of time arising out of a complaint case filed before the Court concerned could be subjected to passing or an order by the appellate Court under Section 148 of the NI Act. It is submitted that in light of the observations of Hon'ble Supreme Court, the learned Addl. Sessions Judge, Hisar has committed no error while passing the impugned order dated 09.09.2019.
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The view of the Hon'ble Supreme Court, as can be derived from the extracts reproduced above, establishes the position that Section 148 of the NI Act is retrospective in nature. The words "even in a case where the criminal complaints for the offence under Section 138 of the NI Act were filed prior to Amendment Act" used by Hon'ble Supreme Court clearly and definitively confirm the position that in cases where a complaint case under Section 138 of the NI Act has been filed by the complainant prior to the enforcement of the amendment on 1st September, 2018, where the accused is convicted and subsequently, the convict
intends to file an appeal against the judgment and order of conviction, then the fact that the complaint case had been filed prior to the amendment will not create a bar on the applicability of Section 148 on the appeal filed after the amendment arising from such a complaint case. Remedy/relief under Section 148 will be available to the complainant against the convict/appellant for such cases, that is, where the complaint case pertains to a time prior to the amendment and introduction of Section 148 of the NI Act, even though the appeal pertains to a time post the amendment.
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For deciding this question, it is deemed necessary to look into the purpose and intent of the legislature while passing the amendment, whereby, Section 143A and 148 were added to the NI Act. The Statement of Objects and Reasons for the amendment of NI Act is reproduced as under:- " The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bills of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonour of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonour cases.
This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realise the value of the cheque. Such delays compromise the sanctity of cheque transactions.
2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so
as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy." 15.
The intention of the legislature is evident from a bare reading of the Statement. The purpose underlaid in the amendment of the Act is facilitation of speedy and effective disposal of matters initiated under the NI Act, specifically under Section 138. The second purpose is that the right to appeal is not misused at the expense of the complainant only to delay meeting the ends of justice. It has been observed that the convicts often obtain stay of order of sentence in the garb of filing an appeal and the proceedings in the appeal are kept pending for years and decades with no consequence and no relief for the complainant in any manner. The objective is to provide some measure of relief to the complainant in the event of stay of proceedings or any such other event. The aim of the legislature was also to avoid frivolous litigations and to save time, money and other resources of the Courts as well as the parties. 16.
Keeping in view the objective of the amendment, it is proper to state that to avoid frivolous, unnecessary and unscrupulous litigations and proceedings, the Court concerned may take the required steps to ensure that the appellant has approached the Court with a genuine and real case against the order of conviction and is not wasting the time and resources of the judicial machinery only to delay his conviction and punishment thereof. The Hon'ble Supreme Court has held the provision in question, that is, Section 148 of the NI Act, to be retrospective in
nature and having applicability over complaints that have been filed prior to the amendment. This reflects the intention of the Hon'ble Apex Court to not extinguish the relief as intended to be granted to the complainant under Section
148. The interpretation may be construed to mean that any appeal which is emanating from a complaint filed prior to the amendment will fall within the ambit of the nature of cases as described by the Hon'ble Supreme Court and Section 148 would apply to such cases. The idea is also to give purposive interpretation to Section 148 to extend applicability to cases which were filed when the remedy was not available to the complainant under Section 148 of the NI Act.
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# 0 +6 /it has been established that the applicability of Section 148 of the NI Act will be extended to the appeals arising out of complaint cases that have been filed prior to the amendment, so
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