Back
IN THE HIGH COURT OF PUNJAB AND HARYANA
RAJBIR SEHRAWAT, J.
M/S GINNI GARMENTS AND ANOTHER - Appellants
Vs.
M/S SETHI GARMENTS AND OTHERS - Respondents
CRR No.9872-2018(O&M) with CRM-M-49024-2018(O&M), CRM-M-49054-2018(O&M), CRM-M-49055-2018(O&M), CRM-M-49182-2018(O&M), CRM-M-49216-2018(O&M), CRM-M-61716-2018(O&M), CRR-721-2019(O&M), CRR-746-2019(O&M), CRM-M-15297-2019(O&M), CRM-M-12625-2019(O&M), CRM-M-13892-2019(O&M), CRM-M-13039-2019(O&M) and CRM-M-14462-2019(O&M)
Decided On : 04-04-2019
The amount of interim compensation, deemed as fine under Section 143-A of the Act, can be recovered under Section 421 Cr.P.C by attachment and sale of movable and immovable properties of the accused. The same can also be recovered as amounts of arrears of land revenue from movable or immovable property or both, of the accused. Hence, application of this provision has a drastic effect upon the property rights of the accused, and makes him liable for sale of his properties for recovery of amounts, despite the fact that it is yet to be finally determined whether he is guilty of the offence, and as such liable to pay any compensation to the complainant or not. Accordingly, since the amended provision provides for enforcement of recovery of interim compensation by way of coercive procedure, it is nothing but an obligation imposed upon the accused. Section 3 of the Specific Relief Act has clarified the meaning of term `obligation` by defining that any duty enforceable under law is an obligation. As per General Clauses Act, this definition has to be read in all Central Acts unless defined otherwise in the relevant Act. Such an `obligation` having consequences qua the property rights of the accused cannot; but be treated; as substantive provision effecting his substantive right by casting a substantive obligation upon him, to make the payment of money; and if not paid, making him subject to legal deprivement/disability qua his properties.
(B) Negotiable Instruments Act, 1881, S.138 & S.148--Dishonour of Cheque--Interim Compensation--S.148 of N.I. Act authorizing the appellate court to order the appellant to deposit a minimum of 20% of the fine or compensation awarded by the trial court, leaving the remaining amount to be paid beyond a period of 90 days; or not to be paid even till conclusion of the appeal, is a procedural step does not effect to substantial rights of the accused of right to appeal--Hence S.148 of the act shall be applicable to all the appeals pending on date of enforcement of this provision or filed thereafter. (Para 33)
Hence, if the lower Appellate Court has passed the order of deposit of 20% of amount, then although Section 148 of the Act does not specifically mention that amount ordered to be deposited by the Appellate Court would be recoverable under Section 421 Cr.P.C, however, otherwise being part of fine; the same is liable to be recovered only under Section 421 Cr.P.C. Hence, if the Appellate Court passes the order of deposit of 20% or more of amount of fine or compensation that in fact, is a beneficial order for the accused/appellant; because that would mean that the amount of fine or compensation imposed by Trial Court, beyond that 20%, as ordered by the Appellate Court, is ipso facto, being stayed during the pendency of the appeal. Hence instead of prejudicing any substantial right of the appellant this provision is beneficial provision in favour of the accused. Still further there can be a situation where a Trial Court passes sentence of only fine or compensation up to twice the amount of the cheque, without any sentence of imprisonment. In that situation, the fine becomes recoverable immediately. However, Section 424 of Cr.P.C provides that the amount shall be payable in full within 30 days from the date of order of the Trial Court, or at the best in three installments, starting from within 30 days from the order of the Trial Court, and the remaining two installments being paid at the interval of 30 days each. Hence the payment of entire amount of fine or compensation has to be completed within 90 days.
In view of the above discussion, it is quite clear that the procedure of recovery of fine or compensation from a convict-appellant of pending appeal already existed in CR.P.C; before advent of the provision as contained in Section 148 of the Act. Hence, no new aspect of coercive recovery of fine or compensation from the appellant is being created through this amended provision. On the contrary, this provision provides more breathing space to the convict/appellant; as compared to the other procedures of recovery, as contemplated under Sections 421 and 424 of Cr.P.C, which is for more onerous in terms of time limit and the consequences. Since the provisions for recovery of fine or compensation from the appellant/convict already existed in the existing procedure relating to the recovery, therefore, the provision introduced vide Section 148 of the Act; which relates only to recovery of amount partly, as interim measure, has to be treated purely procedural only, which is otherwise also beneficial for the appellant as compared to the pre-existing provisions. 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.
(C) Negotiable Instruments Act, 1881, S.138, S.143-A & S.148--Dishonour of Cheque--Interim compensation--Prospective or Retrospective applicability of S.143-A and S.148 of the Act to pending trials and appeals--For that it has to be firstly determined whether these provisions are substantive in nature or procedural in nature--If the provision is substantive in nature it would have prospective applicability unless mentioned otherwise--If the provision is procedural in nature it would have retrospective applicability. (Para 25)
Dispute between the parties is relating to the applicability of Section 143-A and Section 148 of the 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 above-said provisions. Another significant aspect to be noted is that the Amendment Act has not specifically made the amendment to be applicable retrospectively. The notification of the amendment also does not specify any other date for the amendment to come in operation.
Hence Section 143-A of the Act, for that matter Section 148 of the Act have to be read along-with the relevant and applicable provisions of Cr.P.C, as modified/supplemented by provisions of these two sections. Otherwise also, Section 5 of Cr.P.C provides that nothing in the Code shall effect the provisions contained in any other special law. Therefore, these two sections shall be taken to have effected the provisions of Cr.P.C only to the limited extent, to which the specific provision has been made in these sections, qua the aspect mentioned herein. Otherwise, even the aspect mentioned in these provisions, beyond what is specifically prescribed for in these two sections, have to be followed only as provided in the Cr.P.C. Hence, all the provisions relating to punishment, execution thereof, fine and compensation and recovery thereof, as contained in the Cr.P.C, has to be read in conjunction and in harmony with Section 143-A and Section 148 of the Act.
(D) General Clauses Act, 1956, S.5--Retrospective or Prospective applicability of new laws--Legal position summorized--The test for determining the substantive or procedural nature of the provision or order of the Court would be the consequences; which the affected party invites under such a procedure or order--If the consequences are in furtherance or in commensurance with the proceedings and steps of the trial, the provision/order can be taken as a procedural--On the other hand, if the consequences of provision or the order passed by the Court has nothing to do with the proceedings or steps of the trial, rather, have independent consequences; outside the scope of the trial, and at the same time affects the existential or property rights of the accused, then it has to be taken as a substantive provision only.
(i) 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.
(ii) That all those laws which affect the substantive and vested rights of the parties have to be taken as substantive law, whereas any provision of law dealing with the form of the trial, mechanism of the trial or procedure thereof, has to be treated as procedural in nature.
(iii) Any Act of Parliament shall come into operation on the day on which it receives the assent of the President. Unless it is expressed to become operational on any other date and unless a contrary intention is expressed, the Act shall come into effect qua all cases on the day of its commencement.
(E) Interpretation of Statutes--Substantive rights--The substantive right of a person is the entitlement which is available to him by virtue of his very existence or which relates to his being, belongings or the estates--Such rights can be human rights, constitutional rights or statutory rights. (Para 24)
Such substantive rights can have variety of facets; depending upon the factual situation in which such right is to be considered--The substantive rights can be governed by the constitutional or statutory provisions--The statutory provisions created by the competent legislature can prescribed certain conditions for crystallizing the substantive right of the person--In such a situation, once the conditions prescribed for crystallizing such right are fulfilled, such substantive right of a person becomes vested right as well--So all substantive rights are not vested rights but all vested rights are substantive rights.
(F) Interpretation of Statutes--Procedural rights--Statute can prescribe the procedure for protection, determination or regulation of the substantive rights as well--The procedure would, essentially, be relating to providing remedy, form of adjudication of such a remedy, procedure to be followed by adjudicatory a forum or the mechanism prescribed for enforcement of decision of such forum. (Para 25)
Hence, a law which essentially deals with forums of adjudication, procedure of adjudication and the mechanism for enforcement of result of such an adjudication, would essentially be procedural in nature--All rights granted by procedural law would be only procedural rights--As a corollary to this, no procedural right can be either substantive or vested right.
(G) Interpretation of Statutes--Non obstante clause--Non-obstante clause, used in provision of a law has to be given only a contextual interpretation and not to be taken as an absolute exclusion or over-riding of the law contained in provisions qua which the non-obstante clause has been used. (Para 24)
(H) Interpretation of Statutes--Substantive or procedural nature of provision--The test for determining the substantive or procedural nature of the provision or order of the Court would be the consequences; which the affected party invites under such a procedure or order. (Para 31)
If the consequences are in furtherance or in commensurance with the proceedings and steps of the trial, the provision/order can be taken as a procedural. On the other hand, if the consequences of provision or the order passed by the Court has nothing to do with the proceedings or steps of the trial, rather, have independent consequences; outside the scope of the trial, and at the same time affects the existential or property rights of the accused, then it has to be taken as a substantive provision only.
Rajbir Sehrawat, J.
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.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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-
(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 furthe
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
