Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1160 OF 2019
(Arising out of Special Leave Petition (Criminal)No.3342 of 2019)
G.J. RAJA …Appellant
VERSUS
TEJRAJ SURANA …Respondent
J U D G M E N T[
Uday Umesh Lalit, J.
1. Leave granted.
2. This Appeal challenges the Final Order dated 08.02.2019 passed by
the High Court of Judicature at Madras in Criminal O.P.No.3406 of 2019
preferred by the Appellant herein.
3. Complaint under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as ‘the Act’) being C.C.No.7171 of 2018 is
presently pending against the Appellant before the IInd Fast Track Court
-Metropolitan Magistrate, Egmore, Chennai. According to the complaint,
two cheques issued by the Appellant in the sums of Rs.20,00,000/- and
Rs.15,00,000/- in favour of the Respondent-Complainant were dishonoured
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
2
on account of insufficiency of funds. The Complaint was lodged on
04.11.2016.
4. With effect from 01.09.2018, Section 143A was inserted in the Act by
Amendment Act 20 of 2018. Said Section is to the following effect:-
“143A. Power to direct interim compensation. –
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), the Court
trying an offence under section 138 may order the
drawer of the cheque to pay interim compensation to
the complainant –
(a) in a summary trial or a summons case, where
he pleads not guilty to the accusation made in
the complaint; and
(b) in any other case, upon framing of charge.
(2) The interim compensation under sub-section (1)
shall not exceed twenty per cent of the amount of the
cheque.
(3) The interim compensation shall be paid within
sixty days from the date of the order under subsection (1), or within such further period not
exceeding thirty days as may be directed by the Court
on sufficient cause being shown by the drawer of the
cheque.
(4) If the drawer of the cheque is acquitted, the Court
shall direct the complainant to repay to the drawer the
amount of interim compensation, with interest at the
bank rate as published by the Reserve Bank of India,
prevalent at the beginning of the relevant financial
years, within sixty days from the date of the order, or
within such further period not exceeding thirty days
as may be directed by the Court on sufficient cause
being shown by the complainant.
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
3
(5) The interim compensation payable under this
section may be recovered as if it were a fine under
section 421 of the Code of Criminal Procedure, 1973
(2 of 1974).
(6) The amount of fine imposed under section 138 or
the amount of compensation awarded under section
357 of the Code of Criminal Procedure, 1973 (2 of
1974), shall be reduced by the amount paid or
recovered as interim compensation under this
section.”
5. Soon thereafter, the Trial Court ordered that 20% of the cheque
amount be made over by the Appellant to the Respondent as interim
compensation in accordance with the provisions of Section 143A of the
Act. Thus, the Appellant was directed to pay to the Respondent a sum of
Rs.7,00,000/-.
6. The Appellant being aggrieved, filed Criminal O.P.No.3406 of 2019
in the High Court. By its order dated 08.02.2019, the High Court found no
illegality or infirmity in the order awarding interim compensation under
Section 143A of the Act but reduced the percentage from 20% of the
cheque amount to 15% of the cheque amount.
7. The order of the High Court is presently under challenge. While
issuing notice the Appellant was directed to deposit the sum so ordered by
the High Court in the Trial Court. It was further directed that upon deposit,
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
4
the Trial Court should invest the money in Fixed Deposit and that the
money would not be made over to the Respondent till further orders.
Since the Respondent, despite having been served with the notice, had not
entered appearance, this Court by its Order dated 01.07.2019 requested Mr.
Vinay Navare, learned Senior Advocate to assist this Court as Amicus
Curiae.
8. We heard Mr. G. Ananda Selvam, learned Advocate for the
Appellant and the learned Amicus Curiae.
9. A reading of Section 143A shows (i) interim compensation must not
exceed 20% of the amount of the cheque; (ii) it must be paid within the
time stipulated under Sub-Section (3); (iii) if the accused is acquitted, the
complainant shall be directed to pay to the accused the amount of interim
compensation with interest at the bank rate; (iv) the interim compensation
payable under said Section can be recovered as if it were a fine under
Section 421 of the Code of Criminal Procedure, 1973 (‘the Code’, for
short); and (v) if the accused were to be convicted, the amount of fine to be
imposed under Section 138 of the Act or the amount of compensation to be
awarded under Section 357 of the Code would stand reduced by the amount
paid or recovered as interim compensation.
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
5
10. Since Sub-Section (5) of Section 143A stipulates that the interim
compensation could be recovered as if it were a fine under Section 421 of
the Code, said Section 421 also needs to be considered at this stage.
Section 421 appears in Chapter XXXII of the Code which Chapter deals
with ‘Execution, Suspension, Remission and Commutation of Sentences’.
By very context and the language of the provisions contained in the
Chapter, they apply in cases where the guilt of an accused is determined
and he is convicted of an offence punishable with sentence and/or fine.
Part-C of the Chapter deals with ‘Levy of Fine’ and Section 421 appearing
in said Part-C is to the following effect:-
“421. Warrant for levy of fine.- (1) When an
offender has been sentenced to pay a fine, the Court
passing the sentence may take action for the recovery
of the fine in either or both of the following ways, that
is to say, it may –
(a) issue a warrant for the levy of the
amount by attachment and sale of any
movable property belonging to the
offender;
(b) issue a warrant to the Collector of the
district, authorising him to realise the
amount as arrears of land revenue from
the movable or immovable property, or
both, of the defaulter.
Provided that, if the sentence directs that in default of
payment of the fine, the offender shall be imprisoned,
and if such offender has undergone the whole of such
imprisonment in default, no Court shall issue such
warrant unless, for special reasons to be recorded in
writing, it considers it necessary so to do, or unless it
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
6
has made an order for the payment of expenses or
compensation out of the fine under section 357.
(2) The State Government may make rules regulating
the manner in which warrants under clause (a) of subsection (1) are to be executed, and for the summary
determination of any claims made by any person other
than the offender in respect of any property attached
in execution of such warrant.
(3) Where the Court issues a warrant to the Collector
under clause (b) of sub-section (1), the Collector shall
realise the amount in accordance with the law relating
to recovery of arrears of land revenue, as if such
warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by
the arrest or detention in prison of the offender.”
11. According to Section 421 of the Code, fine could be recovered
either by warrant of attachment or sale of movable property belonging to
the offender or by issuance of warrant to the Collector authorising him to
realise the amount as arrears of land revenue from the movable or
immovable property or both of the defaulter.
12. It is thus clear that in case an accused, against whom an order to
pay interim compensation under Section 143A of the Act is passed, fails or
is unable to pay the amount of interim compensation, the process under
Section 421 can be taken resort to which may inter alia result in coercive
action of recovery of the amount of interim compensation as if the amount
represented the arrears of land revenue. The extent and rigor of the
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
7
procedure prescribed for such recovery may vary from State to State but
invariably, such procedure may visit the person concerned with coercive
methods.
13. For instance, by virtue of Section 183 of the Maharashtra Land
Revenue Code, 1966, in case there be a default in payment of land revenue,
the person concerned could be arrested and detained in custody for 10 days
in the office of the Collector or of a Tehsildar unless the arrears of revenue
which were due, were paid along with the penalty or interest and the cost of
arrest and of the notice of demand as also the cost of his subsistence during
detention.
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 143A of the Act was inserted in the
statute book with effect from 01.09.2018. The question that arises
therefore is whether Section 143A 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 much prior to the introduction of Section
143A. We are concerned in the present case only with the issue regarding
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
8
applicability of said Section 143A to offences under Section 138 of the Act,
committed before the insertion of said Section 143A.
15. While considering general principles concerning ‘retrospectivity
of legislation’ in the context of Section 158-BE inserted in the Income Tax
Act, 1961, it was observed by this Court in Commissioner of Income Tax
(Central)-I, New Delhi vs. Vatika Township Private Limited1
as under:-
“28. Of the various rules guiding how a legislation has to
be interpreted, one established rule is that unless a contrary
intention appears, a legislation is presumed not to be
intended to have a retrospective operation. The idea behind
the rule is that a current law should govern current
activities. Law passed today cannot apply to the events of
the past. If we do something today, we do it keeping in
view the law of today and in force and not tomorrow’s
backward adjustment of it. Our belief in the nature of the
law is founded on the bedrock that every human being is
entitled to arrange his affairs by relying on the existing law
and should not find that his plans have been retrospectively
upset. This principle of law is known as lex prospicit non
respicit: law looks forward not backward. As was observed
in Phillips v. Eyre2
, a retrospective legislation is contrary to
the general principle that legislation by which the conduct
of mankind is to be regulated when introduced for the first
time to deal with future acts ought not to change the
character of past transactions carried on upon the faith of
the then existing law.”
16. Similarly, while considering the effect of modified application of
the provisions of the Code, as a result of Section 20(4)(bb) of the Terrorist
1(2015) 1 SCC 1
2
(1870) LR 6 QB 1
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
9
and Disruptive Activities (Prevention) Act, 1987, whereunder the period for
filing challan or charge-sheet could get extended, this Court considered the
issue about the retrospective operation of the concerned provisions in
Hitendra Vishnu Thakur and others vs. State of Maharashtra and
others3
as under:-
“26. 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
though not exhaustive principles which emerge with regard
to the ambit and scope of an Amending Act and its
retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is
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 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.
3 (1994) 4 SCC 602
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
10
(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.”
17. The fourth and the fifth principle as culled out by this Court in
Hitendra Vishnu Thakur3
are apposite to the present fact situation.
18. The provisions contained in Section 143A have two dimensions.
First, the Section creates a liability in that an accused can be ordered to pay
over upto 20% of the cheque amount to the complainant. Such an order can
be passed while the complaint is not yet adjudicated upon and the guilt of
the accused has not yet been determined. Secondly, it makes available the
machinery for recovery, as if the interim compensation were arrears of land
revenue. Thus, it 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 coercive methods
could also, as is evident from provision like Section 183 of the Maharashtra
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
11
Land Revenue Code, in some cases result in arrest and detention of the
accused.
19. We must at this stage, refer to a decision of this Court in
Employees’ State Insurance Corporation vs. Dwarka Nath Bhargwa4
where provisions of Section 45B, which was inserted in Employees State
Insurance Act, 1948 with effect from 28.01.1968 was held to be procedural
and that it could have retrospective application. Said Section 45B is as
under:-
“45B. Recovery of contributions. - Any contribution
payable under this Act may be recovered as an arrear of
land revenue.”
The issue was whether the modality of recovery so prescribed in said
Section 45B could be invoked in respect of amounts which had become
payable on 27.01.1967 and 24.01.1968, i.e. before said Section 45B was
inserted in the statute book. While holding that the arrears could be
recovered as arrears of land revenue, it was observed, “It is not in dispute
and cannot be disputed that the contributions in question had remained
payable all throughout and were not paid by the respondent.”
20. 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
4 (1997) 7 SCC 131
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
12
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 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 143A 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. The situation is thus completely different from the
one which arose for consideration in Employees’ State Insurance
Corporation4
case.
21. Though arising in somewhat different context, proviso to Section
142(b) which was inserted in the Act by Amendment Act 55 of 2002, under
which cognizance could now be taken even in respect of a complaint filed
beyond the period prescribed under Section 142(b) of the Act, was held to
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
13
be prospective by this Court in Anil Kumar Goel v. Kishan Chand Kaura5
.
It was observed:-
“10. There is nothing in the amendment made to Section 142(b)
by 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.”
22. In our view, the applicability of Section 143A of the Act must,
therefore, be held to be prospective in nature and confined to cases where
offences were committed after the introduction of Section 143A, in order
to force an accused to pay such interim compensation.
23. We must, however, advert to a decision of this Court in Surinder
Singh Deswal and Ors. vs. Virender Gandhi6
where Section 148 of the
Act which was also introduced by the same Amendment Act 20 of 2018
from 01.09.2018 was held by this Court to be retrospective in operation.
As against Section 143A of the Act which applies at the trial stage that is
even before the pronouncement of guilt or order of conviction, 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. It may be stated
that there is no provision in Section 148 of the Act which is similar to
5 (2007) 13 SCC 492
6 (2019) 8 SCALE 445
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
14
Sub-Section (5) of Section 143A of the Act. However, as a matter of fact,
no such provision akin to sub-section (5) of Section 143A was required as
Sections 421 and 357 of the Code, which apply post-conviction, are
adequate to take care of such requirements. In that sense said Section 148
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. Therefore, the decision of this Court in
Surinder Singh Deswal5
stands on a different footing.
24. In the ultimate analysis, we hold Section 143A to be prospective
in operation and that the provisions of said Section 143A 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 143A in the statute 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 Appellant,
pursuant to the interim direction passed by this Court, shall be returned to
the Appellant along with interest accrued thereon within two weeks from
the date of this order.
25. The Appeal is allowed in aforesaid terms.
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
15
26. In the end, we express our sincere gratitude for the assistance
rendered by Mr. Vinay Navare, learned Amicus Curiae.
…………………..J.
[Uday Umesh Lalit]
……………..……..J.
[Vineet Saran]
New Delhi;
July 30, 2019
G.J. Raja vs. Tejraj Surana
1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1160 OF 2019
(Arising out of Special Leave Petition (Criminal)No.3342 of 2019)
G.J. RAJA …Appellant
VERSUS
TEJRAJ SURANA …Respondent
J U D G M E N T[
Uday Umesh Lalit, J.
1. Leave granted.
2. This Appeal challenges the Final Order dated 08.02.2019 passed by
the High Court of Judicature at Madras in Criminal O.P.No.3406 of 2019
preferred by the Appellant herein.
3. Complaint under Section 138 of the Negotiable Instruments Act,
1881 (hereinafter referred to as ‘the Act’) being C.C.No.7171 of 2018 is
presently pending against the Appellant before the IInd Fast Track Court
-Metropolitan Magistrate, Egmore, Chennai. According to the complaint,
two cheques issued by the Appellant in the sums of Rs.20,00,000/- and
Rs.15,00,000/- in favour of the Respondent-Complainant were dishonoured
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
2
on account of insufficiency of funds. The Complaint was lodged on
04.11.2016.
4. With effect from 01.09.2018, Section 143A was inserted in the Act by
Amendment Act 20 of 2018. Said Section is to the following effect:-
“143A. Power to direct interim compensation. –
(1) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), the Court
trying an offence under section 138 may order the
drawer of the cheque to pay interim compensation to
the complainant –
(a) in a summary trial or a summons case, where
he pleads not guilty to the accusation made in
the complaint; and
(b) in any other case, upon framing of charge.
(2) The interim compensation under sub-section (1)
shall not exceed twenty per cent of the amount of the
cheque.
(3) The interim compensation shall be paid within
sixty days from the date of the order under subsection (1), or within such further period not
exceeding thirty days as may be directed by the Court
on sufficient cause being shown by the drawer of the
cheque.
(4) If the drawer of the cheque is acquitted, the Court
shall direct the complainant to repay to the drawer the
amount of interim compensation, with interest at the
bank rate as published by the Reserve Bank of India,
prevalent at the beginning of the relevant financial
years, within sixty days from the date of the order, or
within such further period not exceeding thirty days
as may be directed by the Court on sufficient cause
being shown by the complainant.
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
3
(5) The interim compensation payable under this
section may be recovered as if it were a fine under
section 421 of the Code of Criminal Procedure, 1973
(2 of 1974).
(6) The amount of fine imposed under section 138 or
the amount of compensation awarded under section
357 of the Code of Criminal Procedure, 1973 (2 of
1974), shall be reduced by the amount paid or
recovered as interim compensation under this
section.”
5. Soon thereafter, the Trial Court ordered that 20% of the cheque
amount be made over by the Appellant to the Respondent as interim
compensation in accordance with the provisions of Section 143A of the
Act. Thus, the Appellant was directed to pay to the Respondent a sum of
Rs.7,00,000/-.
6. The Appellant being aggrieved, filed Criminal O.P.No.3406 of 2019
in the High Court. By its order dated 08.02.2019, the High Court found no
illegality or infirmity in the order awarding interim compensation under
Section 143A of the Act but reduced the percentage from 20% of the
cheque amount to 15% of the cheque amount.
7. The order of the High Court is presently under challenge. While
issuing notice the Appellant was directed to deposit the sum so ordered by
the High Court in the Trial Court. It was further directed that upon deposit,
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
4
the Trial Court should invest the money in Fixed Deposit and that the
money would not be made over to the Respondent till further orders.
Since the Respondent, despite having been served with the notice, had not
entered appearance, this Court by its Order dated 01.07.2019 requested Mr.
Vinay Navare, learned Senior Advocate to assist this Court as Amicus
Curiae.
8. We heard Mr. G. Ananda Selvam, learned Advocate for the
Appellant and the learned Amicus Curiae.
9. A reading of Section 143A shows (i) interim compensation must not
exceed 20% of the amount of the cheque; (ii) it must be paid within the
time stipulated under Sub-Section (3); (iii) if the accused is acquitted, the
complainant shall be directed to pay to the accused the amount of interim
compensation with interest at the bank rate; (iv) the interim compensation
payable under said Section can be recovered as if it were a fine under
Section 421 of the Code of Criminal Procedure, 1973 (‘the Code’, for
short); and (v) if the accused were to be convicted, the amount of fine to be
imposed under Section 138 of the Act or the amount of compensation to be
awarded under Section 357 of the Code would stand reduced by the amount
paid or recovered as interim compensation.
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
5
10. Since Sub-Section (5) of Section 143A stipulates that the interim
compensation could be recovered as if it were a fine under Section 421 of
the Code, said Section 421 also needs to be considered at this stage.
Section 421 appears in Chapter XXXII of the Code which Chapter deals
with ‘Execution, Suspension, Remission and Commutation of Sentences’.
By very context and the language of the provisions contained in the
Chapter, they apply in cases where the guilt of an accused is determined
and he is convicted of an offence punishable with sentence and/or fine.
Part-C of the Chapter deals with ‘Levy of Fine’ and Section 421 appearing
in said Part-C is to the following effect:-
“421. Warrant for levy of fine.- (1) When an
offender has been sentenced to pay a fine, the Court
passing the sentence may take action for the recovery
of the fine in either or both of the following ways, that
is to say, it may –
(a) issue a warrant for the levy of the
amount by attachment and sale of any
movable property belonging to the
offender;
(b) issue a warrant to the Collector of the
district, authorising him to realise the
amount as arrears of land revenue from
the movable or immovable property, or
both, of the defaulter.
Provided that, if the sentence directs that in default of
payment of the fine, the offender shall be imprisoned,
and if such offender has undergone the whole of such
imprisonment in default, no Court shall issue such
warrant unless, for special reasons to be recorded in
writing, it considers it necessary so to do, or unless it
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
6
has made an order for the payment of expenses or
compensation out of the fine under section 357.
(2) The State Government may make rules regulating
the manner in which warrants under clause (a) of subsection (1) are to be executed, and for the summary
determination of any claims made by any person other
than the offender in respect of any property attached
in execution of such warrant.
(3) Where the Court issues a warrant to the Collector
under clause (b) of sub-section (1), the Collector shall
realise the amount in accordance with the law relating
to recovery of arrears of land revenue, as if such
warrant were a certificate issued under such law:
Provided that no such warrant shall be executed by
the arrest or detention in prison of the offender.”
11. According to Section 421 of the Code, fine could be recovered
either by warrant of attachment or sale of movable property belonging to
the offender or by issuance of warrant to the Collector authorising him to
realise the amount as arrears of land revenue from the movable or
immovable property or both of the defaulter.
12. It is thus clear that in case an accused, against whom an order to
pay interim compensation under Section 143A of the Act is passed, fails or
is unable to pay the amount of interim compensation, the process under
Section 421 can be taken resort to which may inter alia result in coercive
action of recovery of the amount of interim compensation as if the amount
represented the arrears of land revenue. The extent and rigor of the
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
7
procedure prescribed for such recovery may vary from State to State but
invariably, such procedure may visit the person concerned with coercive
methods.
13. For instance, by virtue of Section 183 of the Maharashtra Land
Revenue Code, 1966, in case there be a default in payment of land revenue,
the person concerned could be arrested and detained in custody for 10 days
in the office of the Collector or of a Tehsildar unless the arrears of revenue
which were due, were paid along with the penalty or interest and the cost of
arrest and of the notice of demand as also the cost of his subsistence during
detention.
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 143A of the Act was inserted in the
statute book with effect from 01.09.2018. The question that arises
therefore is whether Section 143A 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 much prior to the introduction of Section
143A. We are concerned in the present case only with the issue regarding
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
8
applicability of said Section 143A to offences under Section 138 of the Act,
committed before the insertion of said Section 143A.
15. While considering general principles concerning ‘retrospectivity
of legislation’ in the context of Section 158-BE inserted in the Income Tax
Act, 1961, it was observed by this Court in Commissioner of Income Tax
(Central)-I, New Delhi vs. Vatika Township Private Limited1
as under:-
“28. Of the various rules guiding how a legislation has to
be interpreted, one established rule is that unless a contrary
intention appears, a legislation is presumed not to be
intended to have a retrospective operation. The idea behind
the rule is that a current law should govern current
activities. Law passed today cannot apply to the events of
the past. If we do something today, we do it keeping in
view the law of today and in force and not tomorrow’s
backward adjustment of it. Our belief in the nature of the
law is founded on the bedrock that every human being is
entitled to arrange his affairs by relying on the existing law
and should not find that his plans have been retrospectively
upset. This principle of law is known as lex prospicit non
respicit: law looks forward not backward. As was observed
in Phillips v. Eyre2
, a retrospective legislation is contrary to
the general principle that legislation by which the conduct
of mankind is to be regulated when introduced for the first
time to deal with future acts ought not to change the
character of past transactions carried on upon the faith of
the then existing law.”
16. Similarly, while considering the effect of modified application of
the provisions of the Code, as a result of Section 20(4)(bb) of the Terrorist
1(2015) 1 SCC 1
2
(1870) LR 6 QB 1
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
9
and Disruptive Activities (Prevention) Act, 1987, whereunder the period for
filing challan or charge-sheet could get extended, this Court considered the
issue about the retrospective operation of the concerned provisions in
Hitendra Vishnu Thakur and others vs. State of Maharashtra and
others3
as under:-
“26. 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
though not exhaustive principles which emerge with regard
to the ambit and scope of an Amending Act and its
retrospective operation may be culled out as follows:
(i) A statute which affects substantive rights is
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 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.
3 (1994) 4 SCC 602
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
10
(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.”
17. The fourth and the fifth principle as culled out by this Court in
Hitendra Vishnu Thakur3
are apposite to the present fact situation.
18. The provisions contained in Section 143A have two dimensions.
First, the Section creates a liability in that an accused can be ordered to pay
over upto 20% of the cheque amount to the complainant. Such an order can
be passed while the complaint is not yet adjudicated upon and the guilt of
the accused has not yet been determined. Secondly, it makes available the
machinery for recovery, as if the interim compensation were arrears of land
revenue. Thus, it 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 coercive methods
could also, as is evident from provision like Section 183 of the Maharashtra
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
11
Land Revenue Code, in some cases result in arrest and detention of the
accused.
19. We must at this stage, refer to a decision of this Court in
Employees’ State Insurance Corporation vs. Dwarka Nath Bhargwa4
where provisions of Section 45B, which was inserted in Employees State
Insurance Act, 1948 with effect from 28.01.1968 was held to be procedural
and that it could have retrospective application. Said Section 45B is as
under:-
“45B. Recovery of contributions. - Any contribution
payable under this Act may be recovered as an arrear of
land revenue.”
The issue was whether the modality of recovery so prescribed in said
Section 45B could be invoked in respect of amounts which had become
payable on 27.01.1967 and 24.01.1968, i.e. before said Section 45B was
inserted in the statute book. While holding that the arrears could be
recovered as arrears of land revenue, it was observed, “It is not in dispute
and cannot be disputed that the contributions in question had remained
payable all throughout and were not paid by the respondent.”
20. 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
4 (1997) 7 SCC 131
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
12
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 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 143A 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. The situation is thus completely different from the
one which arose for consideration in Employees’ State Insurance
Corporation4
case.
21. Though arising in somewhat different context, proviso to Section
142(b) which was inserted in the Act by Amendment Act 55 of 2002, under
which cognizance could now be taken even in respect of a complaint filed
beyond the period prescribed under Section 142(b) of the Act, was held to
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
13
be prospective by this Court in Anil Kumar Goel v. Kishan Chand Kaura5
.
It was observed:-
“10. There is nothing in the amendment made to Section 142(b)
by 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.”
22. In our view, the applicability of Section 143A of the Act must,
therefore, be held to be prospective in nature and confined to cases where
offences were committed after the introduction of Section 143A, in order
to force an accused to pay such interim compensation.
23. We must, however, advert to a decision of this Court in Surinder
Singh Deswal and Ors. vs. Virender Gandhi6
where Section 148 of the
Act which was also introduced by the same Amendment Act 20 of 2018
from 01.09.2018 was held by this Court to be retrospective in operation.
As against Section 143A of the Act which applies at the trial stage that is
even before the pronouncement of guilt or order of conviction, 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. It may be stated
that there is no provision in Section 148 of the Act which is similar to
5 (2007) 13 SCC 492
6 (2019) 8 SCALE 445
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
14
Sub-Section (5) of Section 143A of the Act. However, as a matter of fact,
no such provision akin to sub-section (5) of Section 143A was required as
Sections 421 and 357 of the Code, which apply post-conviction, are
adequate to take care of such requirements. In that sense said Section 148
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. Therefore, the decision of this Court in
Surinder Singh Deswal5
stands on a different footing.
24. In the ultimate analysis, we hold Section 143A to be prospective
in operation and that the provisions of said Section 143A 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 143A in the statute 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 Appellant,
pursuant to the interim direction passed by this Court, shall be returned to
the Appellant along with interest accrued thereon within two weeks from
the date of this order.
25. The Appeal is allowed in aforesaid terms.
Criminal Appeal No. 1160 of 2019 @ SLP(Crl.)No.3342 of 2019
G.J. Raja vs. Tejraj Surana
15
26. In the end, we express our sincere gratitude for the assistance
rendered by Mr. Vinay Navare, learned Amicus Curiae.
…………………..J.
[Uday Umesh Lalit]
……………..……..J.
[Vineet Saran]
New Delhi;
July 30, 2019
