Thu. Sep 24th, 2020

Amendment of Section 142 of N.I. Act is in realm of procedural law therefore has a retrospective effect

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Chhattisgarh High Court- While
deciding on a question whether the amendment carried out in Negotiable
Instruments Act, 1881 on 15.06.2015 would have a retrospective operation or
would be prospective in nature and if such amendment has a retrospective effect
whether the complaint filed by the petitioner could have been saved, the bench
of Goutum Bhaduri J, observed that the said amendment is of procedural law and
not substantive law, therefore it will have a retrospective effect dealing with
procedure. The Court relied on T.
Kaliamurthi v. Five Gori Thaikkal Wakf, (2008) 9 SCC 306 wherein it was
held that “it is well settled that no statute shall be construed to have
retrospective operation until its language is such that would require such
conclusion. The Exception to this rule is enactments dealing with procedure”. While
deciding, the Court also referred to Hitendra
Vishnu Thakur v. State of Maharashtra, (1994) 4 SCC 602, where the Supreme
Court observed that a procedural statute should not generally be applied
retrospectively where the result would be to create new disabilities or
obligations or to impose new duties in respect of transactions already

In the instant
case the petitioner filed two complaint cases under Section 138 of N.I. Act
against the respondents that the two post dated cheques drawn in favour of the
petitioner were dishonoured. The cheques were presented by the petitioner for
encashment to the S.B.I. Branch at Chhattisgarh. The cheques were drawn on
ICICI Bank, Visakhapatnam,
who was the banker of the respondent. As a result a complaint was filed by the
petitioner on 20.08 2014, under Section 138 of N.I. Act, 1881 before the Court
of JMFC, Pamgarh and later a revision before the Session Judge, which were both
dismissed. Ashutosh Ghade, appears as Amicus Curiae while counsel for the
petitioner is K.A. Ansari.

Answering to
another issue, whether the petitioner can claim restoration of the complaint on
the strength of amended Section of 142-A(1)(2) inserted by N.I.(Amendment)
Ordinance 2015, the Court observed that as the complaint was returned by JMFC,
Pamgarh in the light of Dashrath
Roopsingh Rathod v. State of Maharashtra, (2014) 9 SCC 129 which
had binding effect until the Ordinance, 2015 came into being, the newly
inserted Section 142(2) will not have the same effect as it does not extend to
the complaints already returned. Hence, there was no question of enquiring into
and trying the offence in absence of a complaint. [A.K.R. Transport v. Kamakshi Shipping, decided on 21.08.2015]
Source: Legal news India

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