2004 (1) TMI 383 - HC - Companies Law

Summary

Issues:
1. Applicability of the appropriate Government to grant remission under section 432 of the Code of Criminal Procedure.
2. Interpretation of the term "appropriate Government" as per section 432 of the Code.
3. Determination of the appropriate Government for remission in the case of offences under section 138 of the Negotiable Instruments Act, 1881.

Analysis:

Issue 1: The primary issue in this case is to determine whether the Government of Kerala has the authority to grant remission under section 432 of the Code of Criminal Procedure. The respondent, the wife of an individual convicted under section 138 of the Negotiable Instruments Act, filed a petition seeking remission of her husband's sentence. The central question is whether the State Government or the Central Government is the competent authority to consider such remission requests.

Issue 2: The interpretation of the term "appropriate Government" under section 432 of the Code is crucial. As per the provisions, the appropriate Government may suspend or remit a sentence. Sub-section (7) defines the "appropriate Government" as the Central Government for offences under laws within the executive power of the Union, and the State Government for other cases. This interpretation is pivotal in determining the jurisdiction of remission in this case.

Issue 3: The specific issue at hand is the determination of the appropriate Government for remission in cases related to section 138 of the Negotiable Instruments Act, 1881. The judgment delves into the constitutional provisions, specifically Article 73 and Article 246, to establish that matters related to cheques fall under the exclusive legislative power of the Parliament. Since the Act is a law made by Parliament and the offence pertains to dishonour of cheques, the appropriate Government for remission in such cases is deemed to be the Central Government.

In conclusion, the High Court of Kerala, in the judgment delivered by Cyriac Joseph, J., clarified that in cases involving offences under section 138 of the Negotiable Instruments Act, 1881, the appropriate Government for remission under section 432 of the Code of Criminal Procedure is the Central Government. The judgment emphasized the exclusive legislative power of the Parliament over matters related to cheques, leading to the Central Government being the competent authority for remission in such cases. Consequently, the writ appeal filed by the State of Kerala and others was allowed, setting aside the earlier judgment that directed the State Government to consider the remission application.