V. Krishna Kumar v. Gireesan and State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE K.HARIPAL** **TUESDAY, THE 22[ND] DAY OF JUNE 2021 / 1ST ASHADHA, 1943 OP(CRL.) NO. 41 OF 2021** **CC 1336/2018 OF SPECIAL COURT OF JUDICIAL MAGISTRATE OF FIRST CLASS FOR TRIAL OF CASES U/S.138 NI ACT(JMFC XII),** ## **THIRUVANANTHAPURAM** ## **PETITIONER/COMPLAINANT:** **V.KRISHNA KUMAR AGED 53 YEARS S/O.VELAYUDHAN PILLAI, RESIDING AT KAITHARAM, MANNAM NAGAR, PAYATTUVILA P.O., (VIA) BALARAMA PURAM, THIRUVANANTHAPURAM 695 501** **BY ADVS. R.T.PRADEEP SMT.M.BINDUDAS SRI.K.C.HARISH** ## **RESPONDENTS/STATE & ACCUSED:** **GIREESAN AGED 50 YEARS AGRA 18, AZHANGAL GARDENS, KARUMOM, KAIMANAM P.O., THIRUVANANTHAPURAM 695 040** **BY ADV. SRI.S.MOHAMMED AL RAFI** **THIS OP (CRIMINAL) HAVING BEEN FINALLY HEARD ON 04.04.2021, THE COURT ON 22.06.2021 DELIVERED THE FOLLOWING:** O.P.(Crl.) No.41 OF 2021 2 **==> picture [59 x 11] intentionally omitted <==** ## **JUDGMENT** This is an original petition filed under Article 226 of the Constitution of India by the complainant in C.C.1336/2018 pending before the Judicial First Class Magistrate – XII, Thiruvananthapuram. That complaint was laid under Sections 190(1)(a), 200 of the Criminal Procedure Code, Cr.P.C. for short, and also Section 142 of the Negotiable Instruments Act, hereinafter referred to as the Act, alleging offence punishable under Section 138 of the Act. Ext.P1 is the complaint preferred by the petitioner against the respondent. The precise allegation is that himself and the respondent are friends, that during the period from April 2016 to November 2016, the respondent had borrowed a total amount of Rs. 25 lakhs from him for his personal needs on the undertaking that it would be repaid within one year. According to the petitioner, after the said one year when the amount was demanded back, the respondent issued two cheques, one for Rs.15 lakhs and the other for Rs.10 lakhs, both dated 01.02.2018 drawn on Killippalam branch of the Indian Overseas Bank. When the cheques were presented for O.P.(Crl.) No.41 OF 2021 3 encashment, both the cheques returned dishonored due to insufficiency of funds. Thereafter, by lawyer notice, the respondent was alerted about the return of the cheques and demanded back the amount, still the amount was not paid and thus cause of action had arisen on 02.04.2018 and the complaint was laid on 25.04.2018. 2. On service of summons when the respondent did not enter appearance, complaining that the trial court is slow peddling coercive steps, the petitioner moved this Court with O.P.(Crl.) No. 272/2020, which was disposed of by Ext.P4 judgment. This Court directed the learned Magistrate to initiate coercive steps against the respondent. The Original Petition was disposed of directing the Judicial Magistrate to dispose of the case within an outer limit of eight months from the date of receipt of a copy of the judgment. Ext.P4 judgment was rendered on 29.09.2020. 3. According to the petitioner, later the respondent appeared before court and was enlarged on bail on 02.12.2020. Copy of the bail order is produced and marked as Ext.P5. The grievance of the petitioner is that even though the respondent ## O.P.(Crl.) No.41 OF 2021 4 was released on bail, the trial court turned down his plea for granting compensation under Section 143A of the Act on the short premise that the complaint is dated 25.04.2018, whereas Section 143A of the Act was brought into statute on 01.09.2018 and thus no interim compensation was ordered to be deposited by the respondent. Aggrieved by the said order, this original petition is filed seeking a relief for directing the trial court to grant interim compensation of Rs. 5 lakhs to the petitioner before putting the case for trial. 4. I heard the counsel for the petitioner as well as the counsel for the respondent. 5. According to the learned counsel for the petitioner, the crucial date for directing the respondent to deposit the amount is the date of commencement of trial by means of recording the plea or framing charge as provided under Section 143A(1) of the Act. Therefore, once the court has recorded the plea of the respondent, he ought to have been directed to deposit atleast 20% of the cheque amount and failure to do so, would cause injustice to him. 6. On the other hand, the learned counsel for the ## O.P.(Crl.) No.41 OF 2021 5 submitted that the was filed on respondent complaint 25.04.2018, the amendment to the Act was brought into force with effect from 01.09.2018 and therefore, date of commencement of the trial has no application in the case. In this connection, he relied on the decision reported in **G.J. Raja v. Tejraj Surana [2019 (4) KHC 201 (SC)]** . He said that Section 143A of the Act has only prospective operation. The learned counsel also pointed out that in **Sufiya v. Abdul Sathar K.M. and Another [2019 KHC 5635]** and also **Rajan Arjunan v. M/s. KLM Axiva Finvest Ltd., Idukki and Another [2020 (3) KHC 184]** this court has followed the decision in **Raja** 's case (supra). 7. In reply the learned counsel for the petitioner submitted that the provisions under Section 143A of the Act is not circumscribed by the date of offence, but is circumscribed only by the date of recording the plea and therefore, the date of commission of the offence in Section 143A of the Act has no application at all. According to the learned counsel, the provision in Section 143A of the Act is very specific, that its application has absolutely no relevance to the date of commission of the ## O.P.(Crl.) No.41 OF 2021 6 offence, that the date of commission has relevance only for filing of the complaint and the plain language of the provision is not considered in **Raja** 's case (supra). According to him, the Hon'ble Supreme Court has also not considered the decision in **Surinder Singh Deswal Alias Colonel S.S. Deswal and Others v. Virender Gandhi [(2019) 11 SCC 341]** , which was rendered in the context of Section 148 of the Act. He argued that the decision rendered in **Raja** 's case (supra) disregarding the plain language of Section 143A of the Act and also ignoring **Surinder Singh** 's case (supra) is per incurium and therefore, the learned counsel pressed for directing the trial court to pay compensation to the petitioner, having regard to the fact that the plea was recorded only on 02.12.2020 when the petitioner had appeared before court. 8. As noticed earlier, the case of the petitioner is that the respondent had borrowed money during the period between April and November 2016 and both the cheques were issued on 01.12.2018 and cause of action for preferring the complaint had arisen on 02.05.2018. Section 143A of the Act was introduced and brought into force on 01.09.2018. So the learned counsel for ## O.P.(Crl.) No.41 OF 2021 7 the respondent has no doubt, in the light of the decision in **Raja** 's case (supra) that Section 143A of the Act has only prospective application, so that, in a transaction that had taken place prior to 01.09.2018 operation of the provision cannot be pressed into service for granting interim compensation. 9. Facts of this case are similar to the facts of **Raja** . In **Raja** , the complaint was launched in 2016, in respect of a cause of action arose in 2016. In other words, the complaint was laid prior to 01.09.2018. Adverting to the facts of the case, the Hon'ble Supreme Court held that, Section 143A of the Act has no retrospective operation and therefore, in a complaint in respect of transaction which has taken place prior to 01.09.2018, interim compensation cannot be ordered. The Hon'ble Supreme Court has elaborately considered the provision in Section 143A of the Act in the context of Section 421 of the Cr.P.C. While ruling that the provision can have only prospective operation, the following principles culled out from **Hitendra Vishnu Thakur v. State of Maharashstra [(1994) 4 SCC 602]** were found to be illustrative:- “(i) A statute which affects substantive rights is presumed to be prospective in operation unless made retrospective, ## O.P.(Crl.) No.41 OF 2021 8 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 its clearly defined limits. - (ii) Law relating to forum and limitation is procedural in nature, whereas 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. - (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. - (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.” The Apex Court also held that the fourth and fifth principles culled out from **Hitendra Vishnu Thakur** are apposite to the facts of the said case. ## 10. The following observations in **Raja** also requires to be highlighted:- “It must be stated that prior to the insertion of Section 143A in the Act there was no provision on the statute book whereunder even before the pronouncement of the guilt of an accused, or even before his conviction for the offence in question, he could be made to pay or deposit interim compensation. The imposition and consequential recovery ## O.P.(Crl.) No.41 OF 2021 9 of fine or compensation either through the modality of Section 421 of the Code or Section 357 of the Code could also arise only after the person was found guilty of an offence. That was the status of law which was sought to be changed by the introduction of Section 143-A in the Act. It now imposes a liability that even before the pronouncement of his guilt or order of conviction, the accused may, with the aid of State machinery for recovery of the money as arrears of land revenue, be forced to pay interim compensation. The person would, therefore, be subjected to a new disability or obligation. ….................................................” 11. In other words, the court said that even though Section 421 of the Cr.P.C. is not applicable in pre-conviction stage, by virtue of the notwithstande clause in Section 143A of the Act which imposes a liability on the accused or the person who faces prosecution for offence under Section 138 of the Act, which not only creates a new disability or an obligation, but also exposes the accused to coercive methods of recovery of such interim compensation through the machinery of the State as if the interim compensation represented arrears of land revenue. The court also noticed that a similar clause as Sub-section (5) under Section 143A of the Act is conspicuously absent in Section 148 of the Act. ## O.P.(Crl.) No.41 OF 2021 10 12. The court has noticed the distinction between Section 143A and Section 148 of the Act. The court also has referred to **Surinder Singh** 's case (supra) and said that Section 148 of the Act applies at the appellate stage where the accused is already found guilty of the offence under Section 138 of the Act, whereas no such provision akin to sub-section (5) of Section 143A of the Act was required as Sections 421 and 357 of the Cr.P.C., which apply post conviction, are adequate to take care of such requirements. So the court held that, in that sense, Section 148 of the Act depends upon the existing machinery and principles already in existence and does not create any fresh disability of the nature similar to that created by Section 143A of the Act. Thus the court held that the decision of the Supreme Court in **Surinder Singh** 's case (supra) stands on a different footing. What I am trying to say is that the Hon'ble Supreme Court in **Raja** 's case (supra), has drawn clear distinction between the application of Sections 143A and 148 of the Act and therefore, the argument that the decision in **Surinder Singh** 's case (supra) has not been applied in **Raja** 's case cannot be accepted in right earnest. ## O.P.(Crl.) No.41 OF 2021 11 13. The crux of the contention of the learned counsel for the petitioner is two fold. Firstly, the decision in **Raja** 's case (surpra) is not in tune with Section 143A of the Act and secondly when it is said that the provisions under Section 143A of the Act is prospective, it has not considered the plain meaning of Section 143A and also the decision in **Surinder Singh** 's case. In other words, submissions have been made as if there is conflict of views by the Supreme Court in **Raja** 's case and **Surinder Singh** 's case. But as a matter of fact, there is no such conflict. While the decision in Raja's case was rendered in the context of Section 143A of the Act, **Surinder Singh** 's case was considering the application of Section 148 of the Act, i.e., direction to pay compensation by the appellate court while suspending the sentence imposed on the convict. 14. The argument of the learned counsel that the decision in **Raja** 's case (supra) is per incurium cannot be considered by this Court. It would be a misadventure on the part of this Court to entertain such a contention. I have no doubt in mind that the argument of the learned counsel is without any basis and is liable to be rejected for numerous reasons. Firstly, as noticed earlier, ## O.P.(Crl.) No.41 OF 2021 12 both the decisions are rendered in different context, while the decision in **Surinder Singh** (supra) was rendered at a post conviction stage where the Supreme Court was considering the applicability of Section 148 of the Act. On the other hand, in **Raja** 's case (supra), the Apex Court was pointedly considering whether Section 143A of the Act has retrospective operation, whether it can be applied in a case where cause of action had arisen prior to 01.09.2018 on which day the amendment had brought into force. 15. Secondly, the Apex Court has considered the import, purport, scope and object of the amendment and after considering various aspects including provisions under Sections 421 and 357 of the Cr.P.C. held that it has only prospective application. It has nothing to do with the date on which the trial commences or the date on which the plea recorded or charge framed against the respondent. It is the law laid down by the Apex court and is binding on this Court under Article 141 of the Constitution of India. 16. Worsening the case of the petitioner, I must say that the decision in **Raja** 's case (supra) is not an isolated verdict of ## O.P.(Crl.) No.41 OF 2021 13 the Hon'ble Supreme Court. The Apex Court had occasion to consider **Raja** 's case (supra) once again. The decision in **Surinder Singh Deswal Alias Colonel S.S. Deswal and Others v. Virender Gandhi and Another [AIR 2020 SC 415]** requires to be mentioned here. For the sake of convenience, **Surinder Singh** 's case reported in **AIR 2020 SC 415** can conveniently be described as ' **Surinder Singh II** '. Both these decisions - (2019) 11 SCC 341 and AIR 2020 SC 415 - were rendered in a litigation between the same parties. **Surinder Singh** 's case in **(2019) 11 SCC 341** was rendered by the Supreme Court in a Criminal Appeal, when an order passed by the Punjab and Haryana High Court in a proceedings under Section 482 of the Cr.P.C. was challenged before the Court. The parties in both these cases are one and the same. In the earlier decision, the appellant challenged the correctness of the order passed by the first appellate court, in directing the convict to deposit certain amount, 25% of the cheque amount as a condition precedent for suspending the sentence under Section 389 of the Cr.P.C. The correctness of that order was challenged under Section 482 of the Cr.P.C. before the Punjab and Haryana High Court. The High ## O.P.(Crl.) No.41 OF 2021 14 Court dismissed that petition stating that an order to deposit a portion of the cheque amount under Section 148 of the Act has retrospective operation. Correctness of that finding was canvassed before the Hon'ble Supreme Court and the Supreme Court dismissed that petition, upholding the finding of the High Court. 17. After rendering the frist decision in **Surinder Singh** on 29.05.2019, as the appellant did not deposit the amount before the trial court, the first appellate court directed the appellant to surrender before court within four days. In other words, the first appellate court maintained that since the condition under which the sentence was suspended was not satisfied, the convict, the appellant is liable to surrender before the trial court. Challenging that order, the appellant again moved the Punjab and Haryana High Court under Section 482 of the Cr.P.C., which was dismissed and **Surinder Singh II** was rendered in such a context. I highlighted these aspects only to say that even in **Surinder Singh II** , the Hon'ble Supreme Court has considered the decision in **Raja** . In other words, **Raja** 's case (supra) was again considered by the Hon'ble Supreme Court and ## O.P.(Crl.) No.41 OF 2021 15 therefore the contention of the learned counsel that it is per incurium is liable to be rejected. 18. The upshot of the discussion is that in a complaint where the alleged cause of action had arisen prior to 01.09.2018, the trial court is not justified in directing the respondent to make the deposit under Section 143A of the Act. There is absolutely no illegality and the petitioner cannot invoke Section 143A of the Act and the inherent jurisdiction of this Court cannot be attracted under Article 226 of the Constitution of India. 19. The O.P. is liable to be dismissed. Dismissed. No cost. This Court notices that due to the order of interim stay granted in these proceedings the trial court could not proceed with the case for honouring the time limit fixed in O.P. (Crl.) No. 272/2020. Now the court may take up the matter and dispose of the complaint within an outer-limit of six months from the date of receipt of a copy of this judgment. ## Sd/- **K.HARIPAL** **JUDGE** **DCS/01.06.2021** O.P.(Crl.) No.41 OF 2021 16 ## **APPENDIX** ## **PETITIONER'S ANNEXURE** |**EXHIBIT P1**|**TRUE COPY OF COMPLAINT DATED 25.4.2018**| |---|---| ||**BEFORE THE COURT OF TEMPORARY SPECIAL COURT**| ||**OF THE JUDICIAL MAGISTRATE OF FIRST CLASS**| ||**COURT FOR THE TRIAL OF CASES UNDER SECTION**| ||**138 OF N.I. ACT, THIRUVANANTHAPURAM**| |**EXHIBIT P2**|**TRUE COPY OF AFFIDAVIT SWORN BY THE**| ||**COMPLAINANT IN SUPPORT OF HIS COMPLAINT**| ||**DATED 25.4.2018**| |**EXHIBIT P3**|**TRUE COPY OF PROCEEDINGS DATED 25.4.2018 IN**| ||**C.C.NO.1336/2018 BEFORE THE COURT OF**| ||**TEMPORARY SPECIAL COURT OF THE JUDICIAL**| ||**MAGISTRATE OF FIRST CLASS COURT FOR THE**| ||**TRAIL OF CASES UNDER SECTION 138 OF N.I.**| ||**ACT, THIRUVANANTHAPURAM.**| |**EXHIBIT P4**|**TRUE COPY OF JUDGMENT DATED 29.9.2020 IN**| ||**O.P(CRL).NO.272/2020**| |**EXHIBIT P5**|**TRUE COPY OF BAIL ORDER DATED 2.12.2020 IN**| ||**C.C.NO.1336/2018 BEFORE THE COURT OF**| ||**TEMPORARY SPECIAL COURT OF THE JUDICIAL**| ||**MAGISTRATE OF FIRST CLASS COURT FOR THE**| ||**TRAIL OF CASES UNDER SECTION 138 OF N.I.**| ||**ACT, THIRUVANANTHAPURAM.**|