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Gujarat High Court
Judgename :D.H.WAGHELA
KUMUDBEN JAYANTILAL MISTRY - Appellant
Versus
STATE OF GUJARAT - Respondent
CRIMINAL REVISION APPLICATION 79 Of 1998
Decided On : 02/19/2007
Whether amendment in Section 142 by Amending Act of 2002, has retrospective application?
Head Note :
Negotiable Instruments Act, 1881 (Central Act 26 of 1881) - Sections 138 to 148 - Negotiable Instruments (Amendment and Misc. Provisions) Act, 2002 - Section 142 - Criminal Procedure Code, 1973 (Central Act 2 of 1974) - Sections 258, 261, 465 and 482 - Quashing of - Proceedings with regard dishonour of cheque - Delay in filing complaint - Order of condonation of delay - Sustainability - Finding as to - Complaint in case for dishonour of cheque in accordance with period of limitation prescribed before amendment was required to be filed on or before 05.12.1996 - The contention of petitioner that second presentation of cheque by complainant and service of notice thereafter could not justify the filing of complaint with delay on 27.12.1996 - Court considering amendment of Section 142 by Amendment Act, 2002 held that it has retrospective application and on basis of admitted facts there being sufficient cause for not making a complaint within prescribed period trial Court was justified in taking cognizance of complaint after the period of limitation - In view of this finding and provision of Section 465 of the Code Court held that it would not be justified in either interfering with the impugned order of in ordering dropping of the proceedings when the cognizance was taken by the trial Court.
Held :
It would clearly appear that, even as the legal position regarding the cause of action arising from the dishonour of cheque for the second time was not clear and settled and the petitioner had not raised the issue of limitation at the initial stage, the Court would have been perfectly justified in taking cognizance of the complaint after condoning the delay on the finding that the complainant had sufficient cause for not making a complaint within the period of limitation. It can hardly be disputed that the amendment of the provisions of Section 142 of the Act amended the procedure for taking cognizance and could not and did not affect any vested right. The bar against taking cognizance, as it existed prior to the amendment of 2002, did not create any right in favour of the accused person but expressly placed an embargo against the Court. Not only that the matter of, the manner in which and the condition subject to which Court takes cognizance of an offence, is a matter of procedure contained in the Code of Criminal Procedure, the provisions of Section 142 carves out a special procedure for the purpose of trying the offence punishable under Section 138 of the Act. It cannot be gainsaid that the amendment adding the proviso to Clause (b) of Section 142 was an amendment of the procedural aspect and, therefore, should have retrospective effect. [Para 6]
In the facts and for the reasons discussed hereinabove, it is held that the amendment of Section 142 by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 would have retrospective effect at least for the pending cases, and in view of the admitted facts of the case, there was sufficient cause for not making a complaint within the prescribed period, and the Court would have been justified in taking cognizance of the complaint after the period of limitation. In view of these findings and the provisions of Section 465 of the Code, this Court would not be justified in either interfering with the impugned order or in ordering dropping of the proceedings on the ground that the Court had no jurisdiction to take cognizance of the offence under the provisions of Section 142 of the Act when the cognizance was taken by the Court. The petition is, therefore, dismissed. Rule is discharge and interim relief is vacated with no order as to cost. [Para 8]
Law Laid Down :
All statutes other than those which are merely declaratory or which relates only to procedure or of evidence are prima facie prospective unless expressly provided.
Case Law Analysis :
New India Insurance Co. Ltd. vs. Smt. Shanti Misra, AIR 1976 SC 237 [Para 3];; Yeshwantrao Laxmanrao Ghatge & Anr. vs. Baburao Bala Yadav, AIR 1978 SC 941 [Para 3];; Mathukumalli Ramayya vs. Uppalapati Lakshmayya, AIR 1942 (29) Privy Council 54 [Para 3];; State of Bombay vs. Supreme General Films Exchange Ltd., AIR 1960 SC 980 [Para 3];; Blyth vs. Blyth, 1966 (1) All ER 524 [Para 4.2];; Hitendra Vishnu Thakur vs. State of Maharashtra, 1994 (4) SCC 602 [Para 5];; Shiv Shakti Co-op. Housing Society, Nagpur vs. M/s. Swaraj Developers & Ors., AIR 2003 SC 2434 [Para 5.1];; Vijay vs. State of Maharashtra & Ors., 2006 (6) SCC 289 [Para 5.2].-Relied on
Conclusion :
The Court was perfectly justified in taking cognizance of complaint after condoning the delay on finding sufficient cause.
Cases Referred :
M/s. Prem Chand Vijay Kumar vs. Yash Pal Singh & Anr., 2005 (5) JT 318 (SC);; M/s. Pepsi Foods Ltd. vs. Special Judicial Magistrate, AIR 1998 SC 128.
Decided in Favour of :
Respondent
Petition Dismissed
( 2 ) HOWEVER, learned counsel Mr A. D. Shah vehemently argued that, in the facts and circumstances of the case, this court was required to exercise its extraordinary jurisdiction and inherent powers to quash the proceedings of the criminal case in the interest of justice as the court had clearly erred in taking cognizance of the offence in violation of the provisions of section 142 of the Negotiable Instrument Act, 1881 (for short, "the Act" ). Since that submission of the learned counsel was based upon certain admitted facts and averments made in the complaint itself, the factual background, as far as it is relevant, may be recapitulated.
1]. The cheque in question, dated 13. 10. 1996 for Rupees One Lakh, was drawn on State Bank of Saurashtra and presented for realization on 23. 10. 1996; it was returned on 24. 10. 1996 on account of instruction to stop payment and a legal notice on that basis was given on 2. 11. 1996. Thereafter, according to the complaint, the petitioner had orally instructed the complainant to again present the cheque after opening an account in the same branch of the same bank and, even as the complainant complied, the cheque was again returned on 18. 11. 1996 with the same endorsement that "payment was stopped". Again, notice dated 26. 11. 1996 was sent and served upon the accused person on 29. 11. 1996. That notice was replied after the period of limitation, on 17. 1. 1997 by which date, the complaint was presented on 27. 12. 1996.
2]. Relying upon the above facts, it was contended for the petitioner that second presentation of cheque by the complainant and service of notice thereafter could not justify the filing of complaint on 27. 12. 1996. The complaint was required to be filed on or before 5. 12. 1996 and the complaint having been filed beyond the period of limitation prescribed under section 142 of the Act, the court could not have legally taken cognizance of the offence. Learned counsel relied upon recent judgment of the Supreme Court in M/s. Prem Chand Vijay Kumar v. Yash Pal Singh and Anr. (JT 2005 (5) SC 318) wherein it is observed as under:
"12. One of the indispensable factors to form the cause of action envisaged in section 138 of the Act is contained in clause (b) of the proviso to that section. It involves the making of a demand by giving a notice in writing to the drawer of the cheque "within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid". If no such notice is
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