M/s. Ginni Garments and anr. Vs M/s Sethi Garments (Punjab & Haryana High Court)
Conclusion –
If the provisions are substantive in nature then the same cannot be applied Retrospectively to the pending cases. However, if the provisions are procedural in nature then the same has to be applied to all the cases, including the one pending before the Court.
Section 143A is substantive and hence effective prospectively, whereas, section 148 is procedural in nature hence effective retrospectively to the pending cases.
Facts –
Question involved in the case is applicability of section 143A and section 148 of NI Act, introduced vide Amendment dated 02.08.2018, to the cases which were already pending at the stage of the trial or to the appeals arising from such trials, whether filed before or after the enforcement of the sections.
Petitioner submitted that the amendments create a new liability/obligation upon the accused, although his act; liable to be punished; already stood committed on a prior date, when such an obligation was not contemplated by law. Hence this would tantamount to affecting the substantive right of the accused. Therefore, by no means, such an amendment can be treated to be procedural in nature. Hence, the same does not deserve to be applied to the pending cases.
Held –
HC observed that SC has amply clarified the legal proposition that all substantive laws have to be prospective in nature and applicability; unless prescribed to be retrospective, whereas all procedural laws have to be applicable to all cases immediately on their coming into operation, including the pending cases.
Section 143-A of the Act cast a substantive obligation upon the accused and thereby effect the substantive right of the accused. Since the Amendment Act has not made the provision applicable retrospectively, specifically, to pending cases, hence, it cannot be applied retrospectively, to pending cases; which arose from the default of the accused which has taken place before coming into force of this provision.
Provisions of section 148 doesn’t affect the substantive right of the accused to defend himself or to prosecute his appeal. No new aspect of coercive recovery of fine or compensation from the appellant is being created through this amended provision. Hence it has to be held that provision of Section 148 of the Act shall govern all the appeals pending on date of enforcement of this provision or filed thereafter.
FULL TEXT OF THE HIGH COURT ORDER / JUDGEMENT
This Order shall dispose of a bunch of 14 petitions, challenging the Orders passed by the Trial Courts in the trials under Section 138 of the Negotiable Instruments Act 1881(hereinafter referred to as‘the Act’), whereby the Trial Courts have ordered the accused/petitioners to pay 20% or less of the cheque amount to the complainant under Section 143-A of the Act, as well as the petitions challenging the Orders passed by the Appellate Courts directing the convicts/appellants/petitioners herein to deposit 20% or more of amount of fine or compensation awarded by the Trial Court, during the pendency of the appeal, by exercising powers under Section 148 of the Act.
CRM-M-13039-2019,CRM-M-13892-2019,CRM-M-14462- 2019 CRR-9872-2018 are the petitions wherein the Orders passed by the Trial Court under Section 143-A of the Act are under challenge and the CRM-M-49024-2018, CRM-M-49216-2018, CRM-M-49054-2018, CRM-M-49055-2018, CRM-M-49182-2018, CRM-M-12625-2019, CRM-M-15297-2019, CRM-M-61716-2018, CRR-721-2019, CRR-746-2019 are the petitions where in the Orders passed by the Appellate Court under Section 148 of the Act are under challenge.
It deserves to be noted that there is no dispute on facts of the case in either of the petitions. The Orders have been impugned in all these petitions only on purely legal ground that under Section 143-A and Section 148 of the Act, the Courts below cannot be deemed to have any authority, retrospectively, to pass the Order imposing the liability of payment of the amounts, mentioned in the impugned orders, in the pending trial or in the pending appeals.
Another aspect which deserves to be clarified at the outset is that the Orders impugned in these petitions have been passed by the Courts below by virtue of the powers conferred under Section 143-A of the Act during the trial, and under Section 148 of the Act during the pendency of appeal. Both these sections were not in existence in the Act earlier. Both these sections were added vide Amendment No.20 of 2018. In none of the petitions, the vires of these provisions are under challenge. Hence, this Court is proceeding on the presumption that the sections introduced by the Amendment Act, are validly operating law.
The only challenge raised by the respective petitioners, in all these petitions, is that since the Amendment Act has been enforced with effect from 02.08.2018, therefore, these provisions cannot be made applicable to the cases, where the trials for offence under Section 138 of the Act were already pending or where the appeals have arisen from such trials, which were pending on the date of the enforcement of these provisions. Hence, in essence, the grounds for challenge, in all the petitions, is that applying these provisions to the cases already pending before the Courts would tantamount to giving these provisions retrospective operation, although, the Amendment Act does not prescribe for retrospectivity in application of these provisions. Hence these provisions have to be taken as applicable only prospectively, to the cases which arise after introduction of these provisions.
Before proceeding further, it is apposite to take note of the provisions, which have been introduced by Section 143-A and Section 148 of the Act, which are as reproduced herein below:-
“143-A. 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—
