ANIL KUMAR GOEL v. KISHAN CHAND KAURA

Citation: [2007] 13 S.C.R. 313

Court: Supreme Court of India

Bench: ARIJIT PASAYAT, AFTAB ALAM

Case summary

ANIL KUMAR GOEL v. KISHAN CHAND KAURA.pdf

Judgment text

ANIL KUMAR GOEL ---,;,_ v. KISHAN CHAND KAURA "" DECEMBER 12, 2007 [DR. ARIJIT PASAYAT AND AFTAB ALAM, JJ. ] Negotiable Instruments Act, 1881 --ss. 138 and 142 (b) proviso - Insertion ofproviso to s. 142 (b) in 2002 extending the limitation period - On facts, successive presentation ofdishonoured cheque by payee - Events taking place much prior to 2002 - Complaint under section 138 - Maintainability of - Held: Amendment to s. I42(b) not intended to operate retrospectively -Also, payee did not take such plea - Thus, order ofHigh Court that complaint u/ s 138 maintainable on the ground that proviso to s. 142 (b), empowered the court to extend the limitation period on sufficient cause beingshown, set aside - Proceedingspursuant to the complaint -- I quashed. Appellant issued cheque in favour ofrespondcnt on 31. 3. 1998 which was dishonoured on presentation on 11. 4. 1998. The respondent iss11ed a notice to the appellant on 24. 4. 1998.

On assurance by the appellant, the cheque was again presented, but was again dishonoured on 30. 9. 1998. The respondent issued notice to the appellant on 13. 10. 1998 but the payment was not made. Thereafter, on 28. 11. 1998, the respondent filed a complaint u/s 138 of the Negotiable Instruments Act, 1881. Appellant filed application u/s 245 Cr. P. C. for discharge but the same was dismissed. Appellant then filed an application u/s 482 Cr. P. C. for quashing the complaint u/s 138 of the Act on the ground that the complaint was not maintainable in view ofs. 142 (b) of the Act. The High Court dismissed the application on the ground that proviso to s. 142 (b) inserted by Act 55 of2002, empowered the ~ court to extend the limitation period on sufficient cause being 314 SUPREMECOURTREPORTS [2007] 13(Addl. )S. C. R. shown. Hence the present appeal. ~ Allowing the appeal, the Court . >- HELD: 1. 1. Before the amendment, the proviso to clause (b) of s.

142 of the Negotiable Instruments Act, 1881 was not there. Clause (a) of the proviso to section 138 does not put any embargo upon the payee to successively present a dishonoured cheque during the period ofits validity. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after sometime, on his own volition or at the request of the drawer, in expectation that it would be encashed. The primary interest of the payee is to get his money and not prosecution of the drawer, recourse to which, normally, is taken out of compulsion and not choice. On each presentation ofthe cheque and its dishonour, a fresh 1right and not a cause of action - accrues in his favour. Therefore, he may, without taking pre-emptory action in exercise of his such right under clause (b) of s.

ection 138, go on presenting the cheque so as to enable him to exercise such right at any point of time during the validity of the c~eque. (Para 6) (318-D, E, F, G] 1. 2. All laws that ilffect substantive rights gene1rally operate prospectively and there is a presumption against their retrospectivity ifthey affect vested rights and obligations, unless the legislative in! ent is clear and compulsive. Such retrospective y effect may be given where there are express words giving retrospective effeCt orwhere the language used necessarily implies that such retrospeetive operation is intended. Hence, the question whether a statutory provision has retrospective 1~ffect or not depends primarily on the language in which it is couched. Ifthe language is not clear then the court has to decide whether, in the light ofthe surrounding circumstances, retrospective effect should be given to it or not. (Para 8) (319-D, E, F] Mis Punjab Tin Supply Co. , Chandigarh etc. etc. v.

Central Government and Ors. AIR 1984 SC 87 - relied on. 2. In the instant case, there is nothing in the amendment made to s. 142(b) by Act 55 of2002 that the same was intended to operate retrospectively. In fact that was not even the stand of the respondent. When the complaint was filed on 28. 11. 1998, the respondent could"not have foreseen that in future any amendment providing for extending the period of limitation on sufficient cause being shown would be enacted. Thus, the High Court's view is clearly unacceptable and is set aside. The proceeding pursuant to respondent's complaint is quashed. (Paras 9 and 10) [319-G; 320-A, BJ CRIMINALAPPELLATE JURISDICTION: Criminal Appeal No. 1704 of2007. From the Judgment and Order dated 16. 03. 2006 of the High -.... Court ofPunjab and Haryana at Chandigarh in CRL. M. No. 10233-M .. \ of2006. Gagan Gupta, Gurpreet Bawa and Parrnanand Gaur, for the Appellant. The Judgment ofthe Court was delivered by Dr. ARIJIT PASAYAT, J. 1. Leave granted. 2.

Challenge in this appeal is to the order passed by a learned Single Judge ofthe Punjab and Haryana High Court dismissing the application filed in terms of Section 482 of the Code of Criminal Procedure, 1973 (in short the 'Cr. P. C. '). Appellant had filed a petition for quashing the complaint filed by the respondent in terms ofSection 138 ofthe Negotiable Instruments Act, 1881 (in short the 'Act') In the complaint it was averred that a cheque was issued by the appellant on 31. 3. 1998 which was dishonoured by the bank when presented on 11. 4. 1998. Notice dated 27. 4. 1998 was duly served on the appellant. Since the accused appellant assured that the cheque will be honoured if it is presented again, the cheque was presented but was again dishonoured cin 30. 9. 1998 for which 11otice dated 13. 10.. 19Y8 was again served on the appellant. But no payment was made. Appellant filed an application in terms ofSection 245 ofthe Code ofCriminal Procedure, 1973 (in short the 'Cr P. C.

') before the trial court for discharge. It was averred that the application was clearly ban·ed by time and therefore the said application ought to be dismissed at the outset. The motion was opposed by the respondent. The learned Judicial Magistrate dismissed the application st1ting that in view ofthejudgment in Ada/at Prasad v. Roop/al Jindal and Others [2004 (7) SCC 338], the trial court cannot review or reconsider the order issuing process; once process has been issued pursuant to an orderpassed in acomplaint case. Appellant filed a petition in terms ofSection 482 Cr. P. C. which as noticed above was dismissed. It is to be noted thatthe only stand ofthe appellant before the High Court was that even ifthe position as stated by the respondent is accepted to be correct, in view ofSectiion 142 (b) ofthe Act, a complaint was not to be entertained.

High Court dismissed the application on the ground that proviso ofSection 142 (b) oftheAct was inserted videAct 55 of2002 which empowered the court to extend the period oflimitation on sufficient cause being shown. Therefore, the petition was to be dismissed. 3. In support of the appeal, learned counsel for the appellant submitted that the amendment inserted by Act 55 of 2002 had no application to the facts ofthe case as the various events took place much prior to 2002 and in fact the complaint was filed on 28. 11. 1998. It was y further pointed out that the case ofrespondent was not that case in hand was covered by the amendment. Ther1~ is no such plea taken. The High Court could not have made out a nev. · case. 4. There is no appearance on behalfofthe respondent. 5. For resolution ofthe controversy Sections 138 and 142 ofthe Act are relevant. They read as follows: "Section 138: ANILKUMAR GOEL v. KISHAN CHAND KAURA 317 Dishonour of cheque for insufficiency, etc. offunds in the ....

" account - Where any cheque drawn by a person on an account maintained by him with a banker for payment ofany amount of moneyto anotherperson from out ofthat account for the discharge, in whole or in part, ofany debt or other liability, is returned by the bank unpaid, either because ofthe amount ofmoney standing to the credit ofthat account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account \..

t by an agreement made withthat bank, suchperson shall be deemed to have committed an offence and shall, without prejudice to any other provision ofthis Act, be punished with imprisonment for term which may extend to one year, orwith fine which may extend to twice the amount ofthe cheque, or with both: Provided that nothing contained in this section shall apply unless- (a) the cheque has been presented to the bank within a period of ~ six months from the date on which it is drawn or within the period ofits validity, whichever is earlier; (b) the payee or the holder in due course ofthe cheque, as the case may be, makes ademand for the payment ofthe said amount ofmoney by giving a notice in writing, to the drawer ofthe cheque, within fifteen days ofthe receipt ofinformation by him from the bank regarding the return ofthe cheque as unpaid; and (c) the drawer ofsuch cheque fails to make the payment ofthe ~ said amount ofmoney to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt ofthe said notice.

Explanation - For the purposes of this section, "debt or other liability" means a legally enforceable debt or other liability. Section 142: Cognizance ofoffences -Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of1974), - (a) no court shall take cognizance ofany offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month ofthe date on which the cause ofaction arises under clause (c) ofthe proviso to Section 138; (Provided that the cognizance ofa complaint may be taken bythe Court afterthe prescribed period, ifthe complainant satisfies the Court that he had sufficient cause for not making a complaint within such period. ) (c) no court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate ofthe first class shall try any offenae punishable under Section 138. " 6.

Before the amendment, the proviso, as quoted above, was not there. Clause (a) ofthe proviso to Section 138 does not put any embargo upon the payee to successively present a dishonoured cheque during the period of its validity. This apart, in the course of business transactions it is not uncommon for a cheque being returned due to insufficient funds or similar such reasons and being presented again by the payee after sometime, on his own volition or at the request ofthe drawer, in expectation that it would be encashed. The primary interest ofthe payee is to get his money and not prosecution y ofthe drawer, recourse to which, normally, is taken out ofcompulsion and not choice. On each presentation ofthe cheque an<l its dishonour, a fresh right-and not a cause of action - accrues in his favour.

He may, therefore, without taking pre-emptory action in exercise ofhis such right under clause (b) of Section 138, go on presenting the cheque so as to enable him to exercise such right at any point oftime during the validity ofthe cheque. 7. Section 5ofthe General ClausesAct, 1897 (in short the 'General ClausesAct') also throws considerable light on the controversy. Section 5 reads as follows: "5. Coming into operation ofenactments- (1) Where any Central Act is not expressed to come into operation on particular day, then it shall come into operation on the day on which it receives the assent,- (a) In the case ofaCentralAct made before the commencement ofthe Constitution ofthe Governor-General and (b) In the case ofan Act ofParliament ofthe President. (c) Unless the contrary is expressed a Central Act or· C Regulation shall be construed as coming into operation immediately on the expiration ofthe day preceding its commencement. " 8.

All laws that affect substantive rights generally operate prospectively and there is a presumption against their retrospectivity if they affect vested rights and obligations, unless the legislative intent is clear and compulsive. Such retrospective effect may be given where there are express words giving retrospective effect or where the language used necessarily implies that such retrospective operation is intended. Hence the question whether a statutoryprovision has retrospective effect or not depends primarily on the language in which it is couched. Ifthe language is clear and unambiguous, effect will have to be given to the provision is question in accordance with its tenor. Ifthe language is not clear then the court has to decide whether, in the light ofthe surrounding circumstances, retrospective effect should be given to it or not. (See: Ml s Punjab Tin Supply Co. , Chandigarh etc. etc. v. Central Government and Ors. AIR 1984 SC 87). 9.

There is nothing in the amendment made to Section l42(b) by the Act 55 of 2002 that the same was intended to operate retrospectively. In fact that was not even the stand ofthe respondent. Obviously, when the complaint was filed on 28. 11. 1998, the respondent could not have foreseen that in future any amendment providing for extending the period oflimitation on sufficient cause being shown would be enacted. 10. That being so the High Court's view is clearly unacceptable. The impugned order ofthe High Court is set aside. The proceeding pursuant to respondent's complaint i. e. Complaint No. 120 of 1998 in the Court ofJMIC, Chandigarh, is quashed. 11. The appeal is allowed. NJ. Appeal allowed.