Quashed

Mrinmoy Sinha v. the State of Assam and Anr.

Gauhati HC29 Oct 2019Crl.Pet./986/2019

Case brief

AI extract

What is this about?

The Gauhati High Court quashed an order directing interim compensation to a complainant under Section 143(A) of the Negotiable Instruments Act. The court held that since the offence was committed prior to the amendment's effective date of 01.09.2018, the provision could not be applied retrospectively.

What did the court decide?

Impugned order dated 15.07.2019 is quashed and set aside with a direction to the trial court to proceed with the case from the pending stage.

Mrinmoy Sinha Vs the State of Assam and Anr. — Cheque Dishonour | Gauhati HC (2019)

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GAHC010207902019

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : Crl.Pet. 986/2019

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1:MRINMOY SINHA

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S/O LATE MONI SENA SINHA, R/O ASHIRBAD APARTMENT, FLAT NO. 5-A, CHANDMARI, NEAR CHANDMARI POLICE STATION, P.S.-CHANDMARI, DIST-KAMRUP(M), ASSAM, PIN-781003

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VERSUS

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1:THE STATE OF ASSAM AND ANR. REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM

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2:PRADIP KUMAR SARMAH S/O LATE HARENDRA NATH SARMAH R/O ASHIRBAD HOUSE NO.23 LOWER NIZARAPAR CHANDMARI P.S.-CHANDMARI DIST-KAMRUP(M) ASSAM PIN-78100

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Advocate for the Petitioner : MR. A SAIKIA Advocate for the Respondent : PP, ASSAM

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BEFORE HONOURABLE MRS. JUSTICE RUMI KUMARI PHUKAN

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ORDER

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Date : 29-10-2019

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Heard Mr. T Kalita, learned counsel for the petitioner and Mr. SK Jain, learned counsel for the

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respondent.

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The petitioner herein is an accused in CR Case No.5039^C /2018 pending in the court of JMFC, Kamrup(M), Guwahati wherein by order dated 15.07.2019, the leaned trial court has directed the petitioner to pay the interim compensation @ Rs.20 per cent to the complainant as compensation.

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The present application has been filed under Section 482 read with Section 397/401 of Cr.P.C. has been preferred challenging the impugned order on the ground that in terms of the newly induction of Section 143(A) of NI Act, the Court cannot pass such order retrospectively to the Act amended and has prayed for quashing of the aforesaid order as such.

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I have heard the submission of the learned counsel for both the parties and also the documents annexed.

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Having regard to the submission made and the legal points raised, the matter is taken up for disposal at the admission stage itself.

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The learned counsel for the petitioner has pointed out that the aforesaid complaint was filed on 21.08.2018 and the insertion of Section 143(A) of NI Act has come into force on 01.09.2018 by way of amendment and it has been contended that in terms of the order itself such an order for interim compensation can be passed only after the induction of said amendment. It has been contended that as the case was filed and offence was committed prior to the amendment so the compensation and the interim relief cannot be granted by the court. The relevant provision of Act reflects that the provision of amendment received consent on 02.08.2018 and also published on 02.08.2018 but it has come into force by an order of the Government on 01.09.2018.

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Learned counsel for the petitioner has referred to the decision of the Hon’ble Apex Court in

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GJ Raja Vs Tejraj Surana in Crl. 110/2019 arising out of SLP (Criminal) No.3342/2019 wherein

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it has been held that the applicability of the section 143(A) of the Act must, therefore, be held to be prospective in nature and confined to cases where offences were committed after

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the introduction of Section 143(A), in order to force an accused to pay such interim compensation.

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Relevant observation of the aforesaid decision is relied by the learned counsel for the petitioner is quoted below:

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“14. In the present case, the Complaint was lodged in the year 2016 that is to say, the act constituting an offence had occurred by 2016 whereas, the concerned provision viz Section 143(A) of the Act was inserted in the statute book with effect from 01.09.2018. The question that arises therefore is whether Section 143(A) of the Act is retrospective in operation and can be invoked in cases where the offences punishable under Section 138 of the Act were committed must prior to the introduction of Section 143(A). We are concerned in the present case only with the issue regarding applicability of said Section 143(A) to offences Under Section 138 of the Act, committed before the insertion of said Section 143(A).

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The Designated Court has held that the amendment would operate retrospectively and would apply to the pending cases in which investigation was not complete on the date on which the Amendment Act came into force and the challan had not till then been filed in the court. From the law settled by this Court in various cases the illustrative thought not exhaustive principles which emerges with regard to the ambit and scope of an Amending Act and its retrospective operation may be called out as follows:

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(i) A statute which affects substgantive rights in presumed to be prospective in operation unless made retrospective, either expressly or by necessary intendment, whereas a statute which merely affects procedure, unless such a construction is textually impossible, is presumed to be retrospective in its application, should not be given an extended meaning and should be strictly confined to ints clearly defined limits.

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(ii) Law relating to forum and limitation is procedural in nature, wheras law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law.

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(iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished.

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(v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication.

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In the ultimate analysis, we hold Section 143(A0 to be prospective in operation and that the provisions of said Section 143(A)can be applied or invoked only in cases where the offence under Section 138 of the Act was committed after the introduction of said Section 143(A) iin the status 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 Applicant, pursuant to the interim direction passed by this Court, shall be returned to be appellant along with the interest accrued thereon within two weeks from the date of this order.”

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After going through the relevant NI Act along with the amendment provision it is found that the amendment was published in the gazette on 02.08.2018 but it has come into force on 01.09.2018 which is inducted in the Section itself. The same aspect has been discussed by the Hon’ble Supreme Court in VJ Raja (supra).

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In view of the aforesaid decision, there is no any cloud on the proposition that the aforesaid provision of 143(A) inserted on 01.09.2018 and as per the observation made in the aforesaid decision the provision incorporated under Section 143(A) will not come into force to the offence committed prior to the insertion of the amended provision.

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In the instant case, complaint was filed on 21.08.2018 and provision of the Act of Section 143(A) NI Act came into force w.e.f. 01.09.2018 and as per the legal proposition pronounce by the Hon’ble Apex Court as the offence was committed prior to amendment, so the learned trial court cannot direct such interim compensation.

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Taking note of all above, the impugned order dated 15.07.2019 is hereby quashed and set aside with a direction to the learned trial court to proceed with the case from the stage the case was pending.

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With the above observation this case stands disposed of.

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JUDGE

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Comparing Assistant

Mrinmoy Sinha v. the State of Assam and Anr.

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Mrinmoy Sinha v. the State of Assam and Anr.

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