Case Law Details
Shiv Narain Gupta Vs State of U.P. And Anr. (Allahabad High Court)
Present Criminal Revision is preferred against the judgment and order dated 31.08.2010 passed by learned Additional Sessions Judge Court No. 3, Banda in Criminal Appeal No. 14 of 2008 (Laxmi Narain Vs. Shiv Narain Gupta and another), under section 138 of Negotiable Instruments Act,1881 Police Station Kotwali, District-Banda, whereby learned Revisional Court set aside the judgment and order of sentence passed by the learned Civil Judge (S.D.)/ C.J.M., Banda in Complaint Case No.31/1/2008 (Shiv Narain Gupta Vs Laxmi Narain) convicting and sentencing the respondent no.2 with rigorous imprisonment for two years and with fine of Rs. 2000/-.
Brief facts of the case are that revisionist instituted a complaint case against the respondent no.2 under Section 138 Negotiable Instruments Act, alleging therein that on 17.03.1996 respondents borrowed Rs. 40,000/- from the revisionist and against that amount, he gave a cheque dated 20.03.1996 of this amount to the revisionist. The aforesaid cheque was presented for payment in the bank, but it was dishonoured on account of insufficient of the amount in the account of the respondent No.2. Thereafter, a notice dated 16.08.1996 was given by the revisionist asking him to repay the amount within fifteen days, but respondent No.2 did not make the payment.
In Subodh S. Salaskar Versus Jay Prakash M. Shah and another (2008) 13 SCC 689, Hon’ble Apex Court held that:-
26. “………………….The provisions of the Act being special in nature, in terms thereof the jurisdiction of the court to take cognizance of an offence under Section 138 of the Act was limited to the period of thirty days in terms of the proviso appended thereto Parliament only with a view to obviate the aforementioned difficulties on the part of the complainant inserted proviso to Clause (b) of Section 142 of the Act in 2002. It confers a jurisdiction upon the court to condone the delay. It is, therefore, a substantive provision and not a procedural one. The matter might have been different if the Magistrate could have exercised its jurisdiction either under Section 5 of the Limitation Act,196 or Section 473 of the Code of Criminal Procedure,1976. The provisions of the said Acts are not applicable. In any event, no such application for condonation of delay was filed. If the proviso appended to Clause (b) of Section 142 of the Act contained a substantive provision and not a procedural one, it could not have been given a retrospective effect. A substantive law, as it is well settled, in absence of an express provision, cannot be given a retrospective effect or retroactive operation”.
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