IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR CRIMINAL PETITION NO.165 OF 2019 BETWEEN:
Sri Satish N S/o Natarajan Aged about 38 years Residing at Siva Nilaya No.50, 11th Main, 13th Cross Rama Temple Road Near Mobile Tower Kamagondanahalli (K.G. Halli) Bengaluru – 560 015. ... Petitioner (By Sri D. N. Manjunath - Advocate) AND:
Smt. G. Manjula W/o G Muniraj Aged about 50 years Residing at No. 12 17th Cross, B K Nagara Yashwanthpura Bengaluru – 560 022. Respondent This petition filed under Section 482 Cr.P.C., praying to quash the order dated 01.12.2018, passed in C.C. No. 13464/2018 pending on the file of the Hon’ble XII ACMM, Bangalore produced as per Annexure-B.
This petition coming on for Admission, this day, the court made the following:
O R D E R Petitioner who is accused in C.C.No. 13464/2018 has sought for quashing of the order dated 01.12.2018 passed by XII Additional Chief Metropolitan Magistrate, Bengaluru whereunder petitioner – accused has been directed to pay 20% of the cheque amount to the complainant.
2. Respondent herein had filed a private complaint under Section 200 Cr.P.C., against petitioner alleging that for discharge of debt, cheque for Rs.1,75,000/- had been issued by petitioner- accused and on its presentation, has been returned by his Bankers with an endorsement ‘funds insufficient’ and statutory notice issued raising a demand to pay the amount covered under the dishonoured cheque having not been complied, thereby petitioner – accused had committed an offence punishable under Section 138 of Negotiable Instruments Act, 1881 (‘Act’ for short).
3. The records would disclose that cognizance of the offence was taken on 18.06.2018. An order came to be passed on 01.12.2018 directing the accused to pay interim compensation of 20% of the cheque amount by 15.12.2018. Said order came to be passed on the basis of an oral prayer made by the learned counsel appearing for the respondent- complainant. Being aggrieved by said order, petitioner – accused is before this Court. Heard the learned Advocates appearing for the parties.
4. Sri Marulasiddappa, learned Advocate appearing for respondent-complainant has vehemently contended that impugned order does not suffer from any infirmity whatsoever and sought to support the same and has prayed for dismissal of the petition.
5. As already noticed herein above, by order dated 01.12.2018, learned Magistrate directed the petitioner to pay 20% of the cheque amount. Contention raised by learned Advocate appearing for the petitioner which is to the effect that Section 143A of the Act having come into effect from 02.08.2018, said provision cannot be made applicable retrospectively particularly when it is a penal statute deserves to be accepted for the reason that Act No.20/2018 came into effect from 01.09.2018 and expression found in Section 143A(i)(a) would clearly indicate that Court trying offence under Section138 of the Act can order the drawer of the cheque to pay interim compensation to the complainant, where accused pleads ‘not guilty’, in a summary trial or a summons case and in any other case, upon framing of charge. Thus, emphasis is on the expression ‘pleads not guilty’. If the proceedings has commenced even prior to the amendment Act coming into force and plea of the accused had not yet been recorded and in the event of such plea being recorded subsequent to 01.09.2018 i.e., after Act No.20/2018 coming into force, said provision would be still applicable. However, if the plea of the accused has already been recorded prior to 01.09.2018, complainant cannot be heard to contend that even in such circumstances, accused should be called upon to pay interim compensation inasmuch as, a penal statute cannot be made applicable retrospectively.
6. In the light of above discussion, when the facts on hand are re-examined, it would clearly disclose that complaint in question came to be filed on 18.05.2018 and cognizance was taken on the same day and process came to be issued to the accused to appear on 18.06.2018 and plea of the accused came to be recorded on 18.06.2018. As on the date of recording the plea of accused, Act No.20/2018 had not come into force. Hence, complainant cannot be heard to contend that petitioner accused would still be liable to deposit interim compensation. In view of the fact that plea of the accused had already been recorded and the matter was posted for cross examination of P.W.1, complainant cannot seek enforcement of the right vested to a complainant under Section 143A(i) of the Act which is prospective in nature as held hereinabove and as such, impugned order cannot stand test of law.
7. Hence, I proceed to pass the following: ORDER (i) Criminal petition is allowed.
(ii) Order dated 01.12.2018 passed by XII Additional Chief Metropolitan Magistrate, Bengaluru in CC No.13464/2018 is set aside.
(iii) Learned trial Judge shall take steps to expeditiously dispose of the case on merits and in accordance with law.
SD/- JUDGE Np/-