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TMI Blog2025 (1) TMI 1430X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Hon'ble Apex Court in the case of Surinder Singh Deswal [2019 (5) TMI 1626 - SUPREME COURT] has held that the new provisions contained under Section 148 of the Act of 1881 as amended on 01.09.2018 shall be applicable to the appeals against the order of conviction and sentence for the offence under Section 138 of the Act of 1881, even in the cases where the criminal complaints for the offence under Section 138 of the Act of 1881 were filed prior to the amending Act No. 20/2018 i.e. prior to 01.09.2018. It is not worthy to mention here that the Hon'ble Apex Court dealt with the applicability of Section 148 of the Act of 1881, even on the complaints filed prior to 01.09.2018 but the issue of applicability of Section 143A of the Act of 1881 was not under challenge in the case of Surinder Singh Deswal @ Col. S.S. Deswal [2019 (5) TMI 1626 - SUPREME COURT] before the Hon'ble Apex Court. The issue of applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 aspect in the matter, the learned Court below has gravely erred in passing the order impugned directing the petitioner to pay interim compensation that is 20% of the cheque amount to the complainant. Counsel submits that such direction cannot be issued by the Trial Court. In support of his contentions, and he has placed reliance upon the Judgment passed by the Co-ordinate Bench of this Court in the case of Sidharth Jain Vs. Nidhi Financial Services reported in 2023 (4) WLC 719 (Rajasthan). Counsel submits that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pensation (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 period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the drawer of the cheque. (4) If the drawer of the cheque is acquitted, the Court shall direct the complainant to repay to the drawer the amount of interim compensation, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause bein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. As was observed in Phillips v. Eyre, a retrospective legislation is contrary to the general principle that legislation by which the conduct of mankind is to be regulated when introduced for the first time to deal with future acts ought not to change the character of past transactions carried on upon the faith of the then existing law." 16. Similarly, while considering the effect of the modified application of the provisions of the Code, as a result of Section 20(4)(bb) of the Terrorist and Disruptive Activities (Prevention) Act, 1987, whereunder the period for filing challan or charge-she ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent. of the fine or compensation awarded by the trial Court: Provided that the amount payable under this subsection shall be in addition to any interim compensation paid by the appellant under section 143A. (2) The amount referred to in sub-section (1) shall be deposited within sixty days from the date of the order, or within such further period not exceeding thirty days as may be directed by the Court on sufficient cause being shown by the appellant. (3) The Appellate Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Parliament has thought it fit to amend Section 148 of the N.I. Act, by which the first appellate Court, in an appeal challenging the order of conviction under Section 138 of the N.I. Act, is conferred with the power to direct the convicted accused - appellant to deposit such sum which shall be a minimum of 20% of the fine or compensation awarded by the trial Court. By the amendment in Section 148 of the N.I. Act, it cannot be said that any vested right of appeal of the accused - appellant has been taken away and/or affected. Therefore, submission on behalf of the appellants that amendment in Section 148 of the N.I. Act shall not be made applicable retrospectively and more particularly with respect to ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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-Accused under Section 389 of the Cr.P.C. to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant. Therefore, if amended Section 148 of the N.I. Act is purposively interpreted in such a manner it would serve the Objects and Reasons of not only amendment in Section 148 of the N.I. Act, but also S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... j 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 143A in the Act. It now imposes a liability that even before the pronouncement of his guilt or order of conviction, the accused may, with the aid of State machinery for recovery of the money as arrears of land revenue, be forced to pay interim compensation. The person would, therefore, be subjected to a new disability or obligation. The situation is thus completely different from the one which arose for consideration in Employees' State Insurance Corporation case. 21. Though arising in somewhat different context, proviso to Section 142(b) which was inserted in the Act by Amendment Act 55 of 2002, under which cognizance could now be taken even in respect of a complaint filed beyond the period prescribed under Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 has been held by the Co-ordinate Benches of this Court in the case of Budh Ram Regar Vs. Sanwar Mal Mochi reported in 2019 (3) RLW 2673 (Raj.) and Sidharth Jain Vs. Nidhi Financial Services reported in 2023 (4) WLC 719 that the provision contained under Section 143A of the Act of 1881 has no retrospective application. 25. In the light of the judgment passed by the Hon'ble Apex Court in the case of G.J. Raja (supra) it is clear that Section 143A of the Act of 1881 has its prospective effect and the same is applicable upon the complaints filed under Section 138 of the Act of 1881 after introduction/insertion of Section 143A of the Act of 1881 i.e. after 01.09.2018. This provision cannot have its retrospective effect upon the complaints filed prior to 01 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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