Home Case Index All Cases Indian Laws Indian Laws + HC Indian Laws - 2022 (5) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (5) TMI 197 - HC - Indian LawsDishonor of cheque - payment of interim compensation - direction to deposit 15% amount of the dishonoured cheque within eight weeks from the date of receipt of order concerned - Section 143-A of NI Act 1881 - HELD THAT - The Hon'ble Apex Court in DASHRATH RUPSINGH RATHOD VERSUS STATE OF MAHARASHTRA ANOTHER 2014 (8) TMI 417 - SUPREME COURT , inter alia observed that the situs or venue of judicial inquiry and trial of the offence must logically be restricted to where the drawee bank is located. In the considered opinion of this Court, the observations of the Hon'ble Apex Court with regard to offence under Section 138 of the Negotiable Instruments Act, were in relation to reaching the conclusion as to where the judicial inquiry and trial of the offence be held and it is in this context the Hon'ble Apex Court has observed that the offence under Section 138 is committed no sooner the drawee bank returns the cheque unpaid and whereas ultimately it is the place where the drawee bank is located, had been decided as the venue of the judicial inquiry and trial of offence - the Hon'ble Apex Court has inter alia observed that an offence under Section 138 of the NI Act, 1881 is committed no sooner a cheque drawn by an accused is returned unpaid. The Hon'ble Apex Court has further observed that cognizance of any such offence is however forbidden under Section 142 of the NI Act, except a complaint in writing by the payee or holder in due course - The observations at Para 21 in the said case makes it abundantly clear that the Hon'ble Court had made all the observations in context of deciding where a complaint under Section 138 of the Negotiable Instruments Act could be filed. In the considered opinion of this Court, all the observations of the Hon'ble Apex Court including observations at Para 58, have to be read in context of the question which was under consideration of the Hon'ble Apex Court. In the considered opinion of this Court, the observations of the Hon'ble Apex Court in YOGENDRA PRATAP SINGH VERSUS SAVITRI PANDEY ANR. 2014 (9) TMI 1129 - SUPREME COURT , more particularly the observations referred to hereinabove leave nothing to doubt that the intent of the Hon'ble Apex Court was to clarify on the issue and whereas the aspect of the offence under Section 138 being committed upon all the five ingredients being satisfied was clearly clarified. Under such circumstances, in the considered opinion of this Court, while at first blush, it appears that the decisions in Dashrath Rupsing Rathod and Yogendra Pratap Singh, are mutually irreconcilable, but viewed from the perspective of the issue in consideration before the Hon'ble Apex Court in both the judgments, it becomes clear that the decisions, are in separate spheres and there is no mutual irreconcilability of the said decisions. Insofar as the present facts are concerned, the period of 15 days from the date of giving notice under the proviso (c) to Section 138 of the NI Act had expired on 04.09.2018 and whereas it is upon non-payment of the cheque amount by the drawer (petitioners-accused) till the said date that the offence under Section 138 of the NI Act could be stated to be committed. The said date being later than the date on which the amended Section 143A came into force i.e. on 01.09.2018, the provisions of the said amended Section would be applicable to the complaint in question. This Court is of the considered opinion that no error on facts as well as on law has been committed by the Courts below while passing the orders impugned, hence no interference is warranted - Petition dismissed.
Issues Involved:
1. Applicability of Section 143-A of the Negotiable Instruments Act, 1881. 2. Determination of the date when the offence under Section 138 of the Negotiable Instruments Act is committed. 3. Jurisdictional and procedural aspects related to the complaint under Section 138 of the Negotiable Instruments Act. Detailed Analysis: 1. Applicability of Section 143-A of the Negotiable Instruments Act, 1881: The petitioners challenged the orders directing them to pay interim compensation under Section 143-A of the Negotiable Instruments Act, 1881, which came into effect on 01.09.2018. The petitioners argued that since the cheque was dishonoured on 13.08.2018, before the amendment came into force, Section 143-A should not apply. They relied on the Supreme Court decision in *G.J. Raja vs. Tejraj Surana*, which held that Section 143-A is prospective and applies only to offences committed after its introduction. The Court, however, determined that the offence under Section 138 was committed after the amendment came into force, making Section 143-A applicable. 2. Determination of the Date When the Offence under Section 138 is Committed: The core issue was whether the offence under Section 138 is committed on the date the cheque is dishonoured or upon the completion of all conditions in the proviso to Section 138. The petitioners cited *Dashrath Rupsing Rathod vs. State of Maharashtra*, where the Supreme Court stated that the offence is committed when the cheque is dishonoured. However, the Court distinguished this from the decision in *Yogendra Pratap Singh vs. Savitri Pandey*, which clarified that the offence is committed only after the 15-day period post-notice expires without payment. The Court concluded that the offence in this case was committed on 04.09.2018, after the amendment came into force. 3. Jurisdictional and Procedural Aspects: The petitioners argued that the Courts below erred in applying Section 143-A based on the date of cheque dishonour. The Court reviewed the jurisdictional aspect, emphasizing that the observations in *Dashrath Rupsing Rathod* were made in the context of determining the territorial jurisdiction of the Court. The Court held that the offence under Section 138 is complete only when all conditions in the proviso are met, aligning with the decision in *Yogendra Pratap Singh*. Thus, the procedural requirements for taking cognizance of the offence were satisfied only after the 15-day notice period expired. Conclusion: The High Court upheld the orders of the lower Courts, affirming that the offence under Section 138 was committed after the amendment to the Negotiable Instruments Act came into force. Consequently, Section 143-A was applicable, and the interim compensation order was valid. The petition was dismissed, and the application for stay was disposed of accordingly.
|