Court No. - 48
Case :- APPLICATION U/S 482 No. - 5873 of 2019 Applicant :- Mohd. Asalam Opposite Party :- State Of U.P. And Another Counsel for Applicant :- Ramesh Chandra Agrahari,Swatantra Kumar Tripathi Counsel for Opposite Party :- G.A.
Hon'ble Om Prakash-VII,J.
This application under Section 482 Cr.P.C. has been filed with the prayer to quash the impugned order dated 4.12.2018 passed by the Special Judge (N. I. Act), Court No. 2, Allahabad in complaint case no. 32 of 2018 (Santosh Kumar Vs. Mohd. Aslam) under Section 138 Negotiable Instrument Act (hereinafter referred to as the N. I. Act), Police Station Kydganj, district Allahabad pending in the court of Special Judge (N. I. Act) Court No. 2, Allahabad. Further prayer has been made to stay the proceedings of the aforesaid case.
Heard learned counsel for the applicant and learned A.G.A.
Submission of the learned counsel for the applicant is that amendment made in the N.I. Act vide Act No. 20 of 2018 will not be applicable retrospectively. Present complaint was filed on 8.1.2018. Amendment was made effective since 2.7.2018. Thus order dated 4.12.2018 passed in the matter directing the applicant to deposit 20% of the cheque amount as interim compensation is illegal. At this juncture, learned counsel appearing for the applicant placed reliance on the law laid down by the Apex Court in the case of State of U. P. and others Vs. Mahesh Narain etc. reported in AIR 2013 SC 1778 and also the Amendment Act 20 of 2018.
Learned A.G.A. argued that amendment made in the N. I. Act through Amendment Act No. 20 of 2018 is a procedural amendment. Nothing is contained in the Amendment Act regarding its applicability with prospective date only. Therefore, it shall be applicable in all cases pending at that time. It is also argued that there is no illegality or infirmity in the impugned order dated 4.12.2018.
I have considered the rival submissions made by the learned counsel for the parties and have gone through the case law relied upon by the learned counsel for the applicant.
For ready reference para 10 of the aforesaid case is quoted below :
"10. We however have no hesitation in holding that this contention is fit to be rejected outright as the rules cannot be held to be made effective from the date of its preparation but will attain legal sanctity and hence capable of enforcement only when the rules are made effective and the date on which it is to be made effective would obviously be the date when the rules are published vide the gazette notification. In that view of the matter, we find no infirmity in the Respondents plea that they possessed the requisite experience of five years on the post of Scientific Officer as they had already put in five years of service from the publication of the amended Rules of 1990 and, therefore, they were rightly held eligible for consideration of promotion to the next post of Assistant Director. We are thus pleased to approve and uphold the view taken by the High Court on this count."
In this matter, complaint was filed on 8.1.2018 and on the day of the amendment in the N. I. Act made in the year 2018 complaint was pending. Legislature has incorporated new Section 143-A in the Negotiable Instrument Act for interim compensation in favour of the complainant. Nothing is contained in this Act to restrict application of the Amendment Act only from prospective date. If such is the position and legislature itself has provided that amount of fine imposed under Section 138 of the Act or the amount of compensation awarded under Section 357 of the Code of Criminal Procedure, 1973 shall be reduced by the amount paid or recovered as interim compensation then the impugned order passed by the court below cannot be said to be illegal. The applicant does not get any help with the law laid down by the Apex Court in the case of State of U. P. (Supra). It is also clarified at this stage that in the Amendment Act under Section 143-A (4) legislature has also provided that 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 a stipulated period.It is also pertinent to mention that if plea of applicant is accepted, the provision of Section 148 N. I. Act will also be applicable only to those cases which are filed after 2.7.2018, which cannot be accepted.
Thus the grounds taken in the application are not sufficient to allow the prayer made in the application.
The application is dismissed.
Order Date :- 28.2.2019 Sachdeva