Court No. - 64
Case :- APPLICATION U/S 482 No. - 16982 of 2019 Applicant :- Amit Kumar Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Sundeep Shukla,Chandan Sharma Counsel for Opposite Party :- G.A.
Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record of this application.
This application under Section 482 Cr.P.C. has been filed to quash the impugned order dated 14.03.2019 passed by the Additional Court, 138 Negotiable Instruments Act- I, Allahabad in an application under Section 143A of Negotiable Instruments Act, 2018 in Complaint Case No.65970 of 2016 (Manish Kumar Maurya vs. Amit Kumar), under Section 138 of Negotiable Instruments Act, Police Station Naini, District Allahabad.
Controversy involved in this case relates to fact whether the amendment incorporated by Section 143- A of Negotiable Instruments Act, 1881 is applicable retrospectively or not?
Contention has been raised on the basis of heavy reliance in the order passed by the Apex Court in Special Leave to Appeal (Crl.) No.3342 of 2019, and it has been submitted that point for consideration has been made whether the amendment introduced by Act No.20 of 2018 as Section 143A in the Negotiable Instrument Act, 1881 is applicable retrospectively or not. In the wake of above order contention is that Section 143 A of the Negotiable Instrument Act 1881 is not applicable retrospectively and the court below has erred while it directed the applicant to pay interim amount to opposite party no.2 vide order impugned dated 14.3.2019.
However, learned A.G.A. has submitted that in this case, it is admitted fact that the amendment brought by incorporating Section 143- A of Negotiable Instruments Act, 1881 does not create any substantive right between the parties, it merely provides an 'interim measure' that way the amendment introduced (143A of the Negotiable Instruments Act, 1881) is procedural in nature and, it is accepted position that incorporation of procedural amendment is applicable to all proceedings be it retrospective or prospective unless specially barred to be applicable retrospectively. In the absence of any specific bar such amendment shall be construed to be applicable even retrospectively. Here by the incorporation of the amendment by inserting Section 143 A of Negotiable Instruments Act, 1881 no specific bar has been created denying its application retrospectively.
Bare perusal of the amendment under Section 143 A of the Negotiable Instruments Act, 1881, is indicative of fact that there is no rider clause about its non- applicability to those proceedings concerning Section 138 of the Negotiable Instruments Act 1881 launched prior to the date of incorporation of Section 143-A (of the Negotiable Instruments Act). It cannot be treated as an amendment in the substantive law; had it been so, the position would have been different and its applicability would have been expressly excluded being retrospective.
I have carefully perused the aforesaid order (15.4.2019) of Hon'ble Apex Court, wherein the point in controversy is yet to be decided and a final conclusion is to be drawn regarding applicability of Section 143A (of the Negotiable Instrument Act, 1881) whether it is applicable retrospectively or not.
However, in the opinion of this Court, the reply given at this juncture by the learned A.G.A. is liable to be sustained as the amendment brought by incorporating Section 143A of the Negotiable Instruments Act, 1881 is purely of procedural nature and in that regard it is noticeable that in a case involving similar controversy was decided by this Court previously on 11.04.2019 in application U/s 482 Cr.P.C. No.10893 of 2019, Vivek Kumar Negi vs. State of U.P. and another; wherein the following observation was made:-
"The point in issue whether the amendment brought and incorporated under Section 143(A) (1) of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') is applicable retrospectively nor not?
In so far as amendment is concerned, the amendment is of procedural nature and not of substantive nature. Moreover in matters of applicability of the amendment (under Section 143(A), proceedings launched in the matters pending prior to the incorporation of the amendment, there is no express bar in the Act. It being so, the amendment will be applicable even to the proceeding pending prior to the date of incorporation of the amendment as 143(A) in the matters involving provisions of the Negotiable instrument Act, 1881. Therefore, impugned order dated 11.1.2019 passed by the Presiding Officer, Additional Court No.2, Gautam Budh Nagar in Complaint Case No.1397 of 2018 for offence under Section 138 N.I. Act, 1881, Police Station Sector- 20 NOIDA, District Gautam Budh Nagar, pending the court of 2nd Additional Chief Judicial Magistrate, Gautam Budh Nagar is just and does not require any interference."
Thus, in view of above, the prayer made for interference by this Court at this stage is refused.
Learned counsel has further added that in the aforecited order (15.4.2019) of the Apex Court, direction has been given that the applicant- accused was required to deposit the interim compensation amount but in some fixed deposit scheme so that the interest accruing on that amount should be utilized by the person to whom it was directed to be paid. The contentious point of applicability of the amendment prospectively or retrospectively is under consideration and has not attained finality, as such, it would be better, if the applicant of this case, in hand, is also directed to deposit the interim compensation, in- line with the direction of the Apex Court that it should be kept in fixed deposit best interest fetching scheme.
Also considered the above submission.
It can be observed that the order of the Hon'ble Apex Court in the aforesaid case is indicative of fact that the point of applicability (of Section 143 A of the Negotiable Instruments Act, 1881) of the Amendment Act No.20 of 2018 in Negotiable Instruments Act, 1881, is yet to attain finality.
Since the aforesaid direction was issued considering the contentious issue regarding applicability of Section 143A of the Negotiable Instruments Act, 1881 retrospectively or not and the same is yet to be decided by the Hon'ble Apex Court, in that view of the matter, no specific order need be made at this juncture in regard to the submission raised by the counsel for the applicant.
In view of above expatiation, no interference is required in the order impugned dated 14.03.2019 passed by the Additional Court, 138 Negotiable Instruments Act- I, Allahabad.
Application is dismissed.
However, the observation so made shall not prejudice the lower court concerned while trying the case on merit.
Order Date :- 29.4.2019 Raj