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CASE NO.: Appeal (crl.)  1704 of 2007

PETITIONER: Anil Kumar Goel

RESPONDENT: Kishan Chand Kaura

DATE OF JUDGMENT: 12/12/2007

BENCH: Dr. ARIJIT PASAYAT & AFTAB ALAM

JUDGMENT: J U D G M E N T (Arising out of SLP (Crl.) No. 2429 of 2006)                   Dr. ARIJIT PASAYAT, J.

1.      Leave granted.           2.      Challenge in this appeal is to the order passed by a  learned Single Judge of the Punjab and Haryana High Court  dismissing the application filed in terms of Section 482 of the  Code of Criminal Procedure, 1973 (in short the \021Cr.P.C.\022).   Appellant had filed a petition for quashing the complaint filed  by the respondent in terms of Section 138 of the Negotiable  Instruments Act, 1881 (in short the \021Act\022)  In the complaint it  was averred that a cheque was issued by the appellant on  31.3.1998 which was dishonoured by the bank when  presented on 11.4.1998. Notice dated 27.4.1998 was duly  served on the appellant. Since the accused appellant assured  that the cheque will be honoured if it is presented again, the  cheque was presented but was again dishonoured on  30.9.1998 for which notice dated 13.10.1998 was again served  on the appellant. But no payment was made.  Appellant filed  an application in terms of Section 245 of the Code of Criminal  Procedure, 1973 (in short the \021Cr.P.C.\022) before the trial court  for discharge.  It was averred that the application was clearly  barred by time and therefore the said application ought to be  dismissed at the outset.  The motion was opposed by the  respondent.  The learned Judicial Magistrate dismissed the  application stating that in view of the judgment in Adalat  Prasad v. Rooplal Jindal and Others [2004 (7) SCC 338], the  trial court cannot review or reconsider the order issuing  process; once process has been issued pursuant to an order  passed in a complaint case. Appellant filed a petition in terms  of Section 482 Cr.P.C. which as noticed above was dismissed.   It is to be noted that the only stand of the appellant before the  High Court was that even if the position as stated by the  respondent is accepted to be correct, in view of Section 142 B  of the Act, a complaint was not to be entertained.  High Court  dismissed the application on the ground that proviso of  Section 142 (b) of the Act was inserted vide Act 55 of 2002  which empowered the court to extend the period of limitation  on sufficient cause being shown.  Therefore, the petition was  to be dismissed.   

3.      In support of the appeal, learned counsel for the

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appellant submitted that the amendment inserted by Act 55 of  2002 had no application to the facts of the case as the various  events took place much prior to 2002 and in fact the  complaint was filed on 28.11.1998.  It was further pointed out  that the case of respondent was not that case in hand was  covered by the amendment.  There is no such plea taken.  The  High Court could not have made out a new case. 4.      There is no appearance on behalf of the respondent.        5.      For resolution of the controversy Sections 138 and 142 of  the Act are relevant. They read as follows:

"Section 138:  Dishonour of cheque for insufficiency, etc. of  funds in the account - Where any cheque  drawn by a person on an account maintained  by him with a banker for payment of any  amount of money to another person from out  of that account for the discharge, in whole or  in part, of any debt or other liability, is  returned by the bank unpaid, either because of  the amount of money standing to the credit of  that account is insufficient to honour the  cheque or that it exceeds the amount arranged  to be paid from that account by an agreement  made with that bank, such person shall be  deemed to have committed an offence and  shall, without prejudice to any other provision  of this Act, be punished with imprisonment for  a term which may extend to one year, or with  fine which may extend to twice the amount of  the cheque, or with both:   Provided that nothing contained in this section  shall apply unless -  (a) the cheque has been presented to the bank  within a period of six months from the date on  which it is drawn or within the period of its  validity, whichever is earlier;  (b) the payee or the holder in due course of the  cheque, as the case may be, makes a demand  for the payment of the said amount of money  by giving a notice in writing, to the drawer of  the cheque, within fifteen days of the receipt of  information by him from the bank regarding  the return of the cheque as unpaid; and  (c) the drawer of such cheque fails to make the  payment of the said amount of money to the  payee or as the case may be, to the holder in  due course of the cheque within fifteen days of  the receipt of the said notice.  Explanation  - For the purposes of this section,  \023debt or other liability\024 means a legally  enforceable debt or other liability.  Section 142: Cognizance of offences - Notwithstanding  anything contained in the Code of Criminal  Procedure, 1973 (2 of 1974), -  (a) no court shall take cognizance of any  offence punishable under Section 138 except  upon a complaint, in writing, made by the  payee or, as the case may be, the holder in due  course of the cheque;  (b) such complaint is made within one month  of the date on which the cause of action arises  under clause (c) of the proviso to Section 138;

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       (Provided that the cognizance of a  complaint may be taken by the Court after the  prescribed period, if the complainant satisfies  the Court that he had sufficient cause for not  making a complaint within such period.) (c) no court inferior to that of a Metropolitan  Magistrate or a Judicial Magistrate of the first  class shall try any offence punishable under  Section 138.\024        6.      Before the amendment, the proviso, as quoted above, was  not there. Clause (a) of the proviso to Section 138 does not put  any embargo upon the payee to successively present a  dishonoured cheque during the period of its validity. This  apart, in the course of business transactions it is not  uncommon for a cheque being returned due to insufficient  funds or similar such reasons and being presented again by  the payee after sometime, on his own volition or at the request  of the drawer, in expectation that it would be encashed. The  primary interest of the payee is to get his money and not  prosecution of the drawer, recourse to which, normally, is  taken out of compulsion and not choice.  On each  presentation of the cheque and its dishonour, a fresh right- and not a cause of action - accrues in his favour.  He may,  therefore, without taking pre-emptory action in exercise of his  such right under clause (b) of Section 138, go on presenting  the cheque so as to enable him to exercise such right at any  point of time during the validity of the cheque.               7.      Section 5 of the General Clauses Act, 1897 (in short the  \021General Clauses Act\022) also throws considerable light on the  controversy.  Section 5 reads as follows:       \0235. Coming into operation of enactments \026 (1)  Where any Central Act is not expressed to  come into operation on particular day, then it  shall come into operation on the day on which  it receives the assent,- (a)     In the case of a Central Act made before  the commencement of the Constitution  of the Governor-General and (b)     In the case of an Act of Parliament of the  President. (c)     Unless the contrary is expressed a Central  Act or Regulation shall be construed as  coming into operation immediately on the  expiration of the day preceding its  commencement.\024

8.      All laws that affect substantive rights generally operate  prospectively and there is a presumption against their  retrospectivity if they affect vested rights and obligations,  unless the legislative intent is clear and compulsive.  Such  retrospective effect may be given where there are express  words giving retrospective effect or where the language used  necessarily implies that such retrospective operation is  intended.  Hence the question whether a statutory provision  has retrospective effect or not depends primarily on the  language in which it is couched.  If the language is clear and  unambiguous, effect will have to be given to the provision is  question in accordance with its tenor.  If the language is not  clear then the court has to decide whether, in the light of the  surrounding circumstances, retrospective effect should be  given to it or not. (See: M/s Punjab Tin Supply Co.,

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Chandigarh etc. etc.  v. Central Government and Ors. AIR  1984 SC 87). 9.      There is nothing in the amendment made to Section  142(b) by the Act 55 of 2002 that the same was intended to  operate retrospectively.  In fact that was not even the stand of  the respondent. Obviously, when the complaint was filed on  28.11.1998, the respondent could not have foreseen that in  future any amendment providing for extending the period of  limitation on sufficient cause being shown would be enacted.         10.     That being so the High Court\022s view is clearly  unacceptable.  The impugned order of the High Court is set  aside.  The proceeding pursuant to respondent\022s complaint i.e.  Complaint No.120 of 1998 in the Court of JMIC, Chandigarh,  is quashed.       11.     The appeal is allowed.