TaxTMI 
TaxTMI 
2025 (1) TMI 1430
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....mplainant) has submitted three different complaints against the accused-petitioner (hereinafter referred to as the petitioner) for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the 'Act of 1881') on three different occasions i.e. on 28.08.2017, 01.04.2017 and 11.08.2017. Counsel submits that at the time of filing of the complaints under Section 138, there was no provision for the payment of interim compensation of 20% of the cheque amount to the complainant under the Act of 1881. 4. Counsel further submits that the amended provision contained under Section 143A came into force with effect from 01.09.2018, introducing a provision for issuing directions for the payment of interim compensation to the complainant. 5. Counsel submits that the amended provision contained under Section 143A of the Act of 1881, cannot be applied with its retrospective effects on the complaints filed before this amendment. Counsel also submits that the amended provision contained under Section 143A of the Act of 1881 would be applicable upon those complaints filed on or after 01.09.2018. 6. Counsel submits that overlooking the material ....
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.... provision of payment of any interim compensation to the complainant under the Act of 1881 by the accused during the pendency of trial. 10. The Legislature brought and introduced a new provision for payment of interim compensation by the accused to the complainant by incorporating a new provision in the form of Section 143A of the Act of 1881 and the new amended provision came into force with effect from 01.09.2018. The new Section 143A of the Act of 1881 reads as under:- "Section 143A: Power to direct interim compensation (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 further perio....
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....retrospective effect or prospective effect?" 15. While considering the general principles concerning the 'retrospectivity of legislation' in the context of Section 158-BE inserted in the Income Tax Act, 1961, it was observed by the Hon'ble Apex Court in the case of Commissioner of Income Tax (Central)-I, New Delhi vs. Vatika Township Private Limited reported in 2015(1) SCC 1 as under:- "28. Of the various rules guiding how a legislation has to be interpreted, one established rule is that unless a contrary intention appears, a legislation is presumed not to be intended to have a retrospective operation. The idea behind the rule is that a current law should govern current activities. Law passed today cannot apply to the events of the past. If we do something today, we do it keeping in view the law of today and in force and not tomorrow's backward adjustment of it. Our belief in the nature of the law is founded on the bedrock that every human being is entitled to arrange his affairs by relying on the existing law and should not find that his plans have been retrospectively upset. This principle of law is known as lex prospicit non respicit: law looks forward not backward. ....
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.... and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication." 17. The principle as culled out in points No. (iv) & (v) of the above judgment of the Apex Court in the case of Hitendra Vishnu Thakur (supra) are apposite to the present fact situation. 18. This Court cannot lose sight of the fact that, prior to insertion of the new provision, i.e., Section 143A in the Act of 1881, there was no provision in the Act for issuing directions to the drawer of cheque to pay interim compensation of 20% of the cheque amount to the complainant prior to the commission of the offence under Section 138 of the Act of 1881. 19. At the same time a new provision was inserted in the Act of 1881 with effect from 01.09.2018 in the form of Section 148 giving power to the Appellate Court to order payment during pendency of an appeal against conviction. For ready reference Section 148 of the Act of 1881 is reproduced as under:- "Section 148: Power of Appellate Court to order payment pending appeal against conviction. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 19....
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....the appellants for the offence under Section 138 of the N.I. Act were preferred, Amendment Act No. 20/2018 amending Section 148 of the N.I. Act came into force w.e.f. 1.9.2018. Even, at the time when the appellants submitted application/s under Section 389 of the Cr.P.C. to suspend the sentence pending appeals challenging the conviction and sentence, amended Section 148 of the N.I. Act came into force and was brought on statute w.e.f. 1.9.2018. Therefore, considering the object and purpose of amendment in Section 148 of the N.I. Act and while suspending the sentence in exercise of powers under Section 389 of the Cr.P.C., when the first appellate court directed the appellants to deposit 25% of the amount of fine/compensation as imposed by the learned trial Court, the same can be said to be absolutely in consonance with the Statement of Objects and Reasons of amendment in Section 148 of the N.I. Act. 8.1 Having observed and found that because of the delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings, the object and purpose of the enactment of Section 138 of the N.I. Act was being frustrated, the Parlia....
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....be a minimum of 20% of the fine or compensation awarded by the trial Court and the word used is not "shall" and therefore the discretion is vested with the first appellate court to direct the appellant - accused to deposit such sum and the appellate court has construed it as mandatory, which according to the learned Senior Advocate for the appellants would be contrary to the provisions of Section 148 of the N.I. Act as amended is concerned, considering the amended Section 148 of the N.I. Act as a whole to be read with the Statement of Objects and Reasons of the amending Section 148 of the N.I. Act, though it is true that in amended Section 148 of the N.I. Act, the word used is "may", it is generally to be construed as a "rule" or "shall" and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned. Therefore amended Section 148 of the N.I. Act confers power upon the Appellate Court to pass an order pending appeal to direct the Appellant-Accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the Appellant-....
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....o the complainant prior to his conviction for the offence under Section 138 of the Act of 1881. It was held that provisions of Section 143A of the Act of 1881 would apply with its prospective effect and the provisions of Section 148 of the Act of 1881 would not apply with its prospective effect after conviction of the accused for the offence under Section 138 of the Act of 1881 and it was held by the Hon'ble Apex Court in Para 20 to 24 of the judgment as follows:- "20. It must be stated that prior to the insertion of Section 143A in the Act there was no provision on the statute book whereunder even before the 4 (1997) 7 SCC 131 Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019 G.J. Raja vs. Tejraj Surana pronouncement of the guilt of an accused, or even before his conviction for the offence in question, he could be made to pay or deposit interim compensation. The imposition and consequential recovery of fine or compensation either through the modality of Section 421 of the Code or Section 357 of the code could also arise only after the person was found guilty of an offence. That was the status of law which was sought to be changed by the introduction of Section 1....
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....sub-section (5) of Section 143A was required as Sections 421 and 357 of the Code, which apply post-conviction, are adequate to take care of such requirements. In that sense said Section 148 depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act. Therefore, the decision of this Court in Surinder Singh Deswal stands on a different footing. 24. In the ultimate analysis, we hold Section 143A to be prospective in operation and that the provisions of said Section 143A can be applied or invoked only in cases where the offence under Section 138 of the Act was committed after the introduction of said Section 143A in the statute book. Consequently, the orders passed by the Trial Court as well as the High Court are required to be set aside. The money deposited by the Appellant, pursuant to the interim direction passed by this Court, shall be returned to the Appellant along with interest accrued thereon within two weeks from the date of this order. 24. Considering the aforementioned judgment passed by the Hon'ble Apex Court in the case of G.J. Raja (supra) it h....