Chander and Hatinder sharma Advocate and Associate

01/11/2024

Happy Diwali 🪔

21/06/2021

22/05/2021

ITEM NO.1 Court 1 (Video Conferencing) SECTION PIL-W
SUPREM E COURT OF INDIA RECORD OF PROCEEDINGS
Miscellaneous Application No. 665/2021 in SMW(C) No. 3/2020
IN RE COGNIZANCE FOR EXTENSION OF LIMITATION Petitioner(s)
VERSUS
###X
Respondent(s)
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(FOR ADMISSION and IA No.55867/2021-INTERVENTION/IMPLEADMENT and IA
No.55869/2021-APPROPRIATE ORDERS/DIRECTIONS and IA No.55865/2021-
APPLICATION FOR PERMISSION )
Date : 27-04-2021 This Application was called on for hearing today.
CORAM :
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE SURYA KANT
HON'BLE MR. JUSTICE A.S. BOPANNA
For the Parties:
For applicant
Mr. Shivaji M. Jadhav, Adv.
Mr. Manoj K. Mishra, Adv.
Dr. Joseph S. Aristotle, Adv.
Ms. Diksha Rai, Adv.
Mr. Nikhil Jain, Adv.
Mr. Atulesh Kumar, Adv.
Dr. Aman Hingorani, Adv.
Ms. Anzu Varkey, Adv.
Mr. Sachin Sharma, Adv.
Mr. Aljo Joseph, Adv.
Mr. Varinder Kumar Sharma, Adv.
Mr. Abhinav Ramkrishna, AOR
Mr. K.K. Venugopal, AG
Mr. Tushar Mehta, SG
Mr. Rajat Nair, adv.
Mr. Kanu Agrawal, Adv.
Mr. Siddhant Kohli, Adv.
Ms. Chinmayee Chandra, Adv.
Mr. B.V. Balaram, Das, Adv.
Mr. Divyakant Lahoti, AOR
Mr. Pariksh*t Ahuja, Adv.
Ms. Praveena Bisht, Adv.
Ms. Madhur Jhavar, Adv.
For Union of
India
For R.No.4
in SMWP 3/20

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Ms. Vindhya Mehra, Adv.
Mr. Kartik Lahoti,Adv.
Mr. Rahul Maheshwari, Adv.
Mr. Abhimanyu Tewari, Adv.
Ms. Eliza Barr, Adv.
UPON hearing the counsel the Court made the following ORDE R
The Court is convened through Video Conferencing.
This Court took suo motu cognizance of the situation arising out of the challenge faced by the country on account of COVID-19 Virus and resultant difficulties that could be faced by the litigants across the country. Consequently, it was directed vide order dated 23rd March, 2020 that the period of limitation in filing petitions/ applications/ suits/ appeals/ all other proceedings, irrespective of the period of limitation prescribed under the general or special laws, shall stand extended with effect from 15th March, 2020 till further orders.
Thereafter on 8th March, 2021 it was noticed that the country is returning to normalcy and since all the Courts and Tribunals have started functioning either physically or by virtual mode, extension of limitation was regulated and brought to an end. The suo motu proceedings were, thus, disposed of issuing the following directions:

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“1. In computing the period of limitation for any suit, appeal, application or proceeding, the period from 15.03.2020 till 14.03.2021 shall stand excluded. Consequently, the balance period of limitation remaining as on 15.03.2020, if any, shall become available with effect from 15.03.2021.
2. In cases where the limitation would have expired during the period between 15.03.2020 till 14.03.2021, notwithstanding the actual balance period of limitation remaining, all persons shall have a limitation period of 90 days from 15.03.2021. In the event the actual balance period of limitation remaining, with effect from 15.03.2021, is greater than 90 days, that longer period shall apply.
3. The period from 15.03.2020 till 14.03.2021 shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
4. The Government of India shall amend the guidelines for containment zones, to state.

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“Regulated movement will be allowed for medical emergencies, provision of essential goods and services, and other necessary functions, such as, time bound applications, including for legal purposes, and educational and job-related requirements.”
Supreme Court Advocate on Record Association (SCAORA) has now through this Interlocutory Application highlighted the daily surge in COVID cases in Delhi and how difficult it has become for the Advocates-on-Record and the litigants to institute cases in Supreme Court and other courts in Delhi. Consequently, restoration of the order dated 23rd March, 2020 has been prayed for.
We have heard Mr. Shivaji M. Jadhav, President SCAORA in support of the prayer made in this application. Learned Attorney General and Learned Solicitor General have also given their valuable suggestions.
We also take judicial notice of the fact that the steep rise in COVID-19 Virus cases is not limited to Delhi alone but it has engulfed the entire nation. The extraordinary situation caused by the sudden and second outburst of COVID-19 Virus, thus, requires extraordinary measures to minimize the hardship of litigant–public in all the states. We, therefore, restore the order dated 23rd March, 2020 and in continuation of the

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order dated 8th March, 2021 direct that the period(s) of limitation, as prescribed under any general or special laws in respect of all judicial or quasi-judicial proceedings, whether condonable or not, shall stand extended till further orders.
It is further clarified that the period from 14th March, 2021 till further orders shall also stand excluded in computing the periods prescribed under Sections 23 (4) and 29A of the Arbitration and Conciliation Act, 1996, Section 12A of the Commercial Courts Act, 2015 and provisos (b) and (c) of Section 138 of the Negotiable Instruments Act, 1881 and any other laws, which prescribe period(s) of limitation for instituting proceedings, outer limits (within which the court or tribunal can condone delay) and termination of proceedings.
We have passed this order in exercise of our powers under Article 142 read with Article 141 of the Constitution of India. Hence it shall be a binding order within the meaning of Article 141 on all Courts/Tribunals and Authorities.
This order may be brought to the notice of all High Courts for being communicated to all subordinate courts/Tribunals within their respective jurisdiction.
Issue notice to all the Registrars General of the High Courts, returnable in 6 weeks.

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List the Miscellaneous Application on 19th July, 2021.
(NEELAM GULATI) (RAJ RANI NEGI)
ASTT. REGISTRAR-cum-PS DY. REGISTRAR

23/08/2020

Important for everyone.

25/04/2019

M/s Ginni Garments v. M/s Sethi Garments (P&H) : Law Finder Doc Id # 1425527
PUNJAB AND HARYANA HIGH COURT
Before :- Rajbir Sehrawat, J.

CRR No.9872 of 2018(O&M), CRM-M-49024 of 2018(O&M), CRM-M-49054 of 2018(O&M), CRM-M-49055 of 2018(O&M), CRM-M-49182 of 2018(O&M), CRM-M-49216 of 2018(O&M), CRM-M-61716 of 2018(O&M), CRR-721 of 2019(O&M), CRR-746 of 2019(O&M), CRM-M-15297 of 2019(O&M), CRM-M-12625 of 2019(O&M), CRM-M-13892 of 2019(O&M), CRM-M-13039 of 2019(O&M), CRM-M-14462 of 2019(O&M). D/d. 4.4.2019.

M/s Ginni Garments and another - Petitioners

Versus

M/s Sethi Garments and another - Respondents

For the Petitioner in CRR-9872-2018 :- Ferry Sofat and Gurjot Singh Mangat, Advocates.

For the Petitioners in CRM-M-49024, 49054, 49055, 49182, 49216 and 61716 of 2018 :- Mr. Dinesh Arora, Advocate.

For the Petitioner in CRM-M-13892-2019 :- Mr. Manoj Pundir, Advocate.

For the Petitioner in CRM-M-15297-2019 :- Mr. T.S.Sidhu, Advocate.

For the Petitioner in CRM-M-12625-2019 :- Mr. Johan Kumar, Advocate.

For the Respondent No.1 in CRM-M-49054, 49055-2018 :- Mr. Johan Kumar, Advocate.

For the Petitioner in CRR-721-2019 :- Mr. Shashi Kumar Yadav, Advocate.

For the Petitioner in CRR-746-2019 :- Mr. Ramnish Puri, Advocate.

For the Petitioner in CRM-M-13039-2019 :- Mr.Aditya Sanghi, Advocate

For the Petitioner in CRM-M-14462-2019 :- Mr. Chiranshu Bansal, Advocate for Mr. Vikram Singh, Advocate.

For the Respondent in CRR-9872-2018 :- Mr. Naveen Sharma, Advocate.

For the Respondents in CRM-M-49216-2018 :- Rajesh Sethi, Arun Biriwal, Ms. Sukhpinder Kaur, Gaurav Kamboj and Tushar Gera, Advocates.

IMPORTANT
Provisions of Section 143A of Negotiable Instruments Act inserted by Amendment Act, 2018 being substantive are prospective in nature - Cannot apply to pending cases.

IMPORTANT
All provisions relating to punishment, ex*****on, fine and compensation and recovery as contained in Cr.P.C has to be read in conjunction and in harmony with Section Section 143A of Negotiable Instruments Act.

A. Negotiable Instruments Act, 1881 Section 143A (Amendment Act, 2018) - Amended provisions - Effect of Cr.P.C. - Provisions of two Sections of Act start with non-obstante clause against Cr.P.C - Said sections shall be taken to have effected provisions of Cr.P.C only to limited extent, to which specific provision has been made in these sections qua aspect mentioned herein - Hence, all provisions relating to punishment, ex*****on thereof, fine and compensation and recovery thereof, as contained in Cr.P.C, has to be read in conjunction and in harmony with said two Sections of Act.

[Paras 25 and 26]

B. Substantive right - Expression - Explained.

[Paras 23 and 24]

C. Negotiable Instruments Act, 1881 Section 143A (Amendment Act, 2018) - Substantive obligation to pay interim compensation - Prospective effect - Amended provision provides for enforcement of recovery of interim compensation by way of coercive procedure - It is nothing but obligation imposed upon accused - Such obligation having consequences qua property rights of accused cannot but be treated as substantive provision effecting his substantive right by casting substantive obligation upon him to make payment of money; and if not paid, making him subject to legal deprivement qua his properties - All substantive laws have to be prospective in nature and applicability unless prescribed to be retrospective - Since Amendment Act has not made provision applicable retrospectively to pending cases it cannot be applied retrospectively to pending cases.

[Paras 21 and 28]

D. Negotiable Instruments Act, 1881 Section 143A (Amendment Act, 2018) - Provisions whether substantive of procedural in nature - Provisions are not procedural in nature.

[Para 29]

E. Negotiable Instruments Act, 1881 Section 148 (Amendment Act, 2018) - Provision whether substantive of procedural - Provision has to be read in conjunction with relevant provisions of Cr.P.C - Although Right to Appeal per se is substantive right, however, no person have substantive or vested right to claim that he would file and prosecute appeal only in accordance with any particular provision - Right to Appeal being statutory right has to be availed only within parameters provided by said provision - Therefore, if any provision relating to dealing with appeal by Appellate Court is altered, said provision has to be treated as procedural provision only.

[Para 31]

F. Negotiable Instruments Act, 1881 Section 148 (Amendment Act, 2018) - Criminal Procedure Code, 1973 Section 421 Deposit of 20% of compensation amount - Provision whether substantive of procedural - Procedure of recovery of fine or compensation from convict pending appeal already existed in CR.P.C before advent of provision as contained in Section 148 of Act - No new aspect of coercive recovery of fine or compensation from appellant created through amended provision - On contrary, provision provides more breathing space to appellant - Therefore, provision introduced relating to only recovery of amount partly as interim measure has to be treated purely procedural only - Hence provision shall govern all appeals pending on date of enforcement of this provision or filed thereafter.

[Para 34]

Cases Referred :

Anil Kumar Goel v. Kishan Chand Kaura, 2008(1)R.C.R.(Criminal)290.

Basheer @ N.P.Basheer v. State of Kerala, 2004(1) R.C.R (Criminal)1008.

Central Bank of India v. State of Kerala, 2010(8) RCR(Civil)3195.

Dayal Singh v. State of Rajasthan, 2004 AIR SCC 2608.

Hitendra Vishnu Thakur v. State of Maharashtra, AIR 1994 Supreme Court 2623.

Punjab Tin Supply Co., Chandigarh v. Central Government, 1984(1)RCR (Rent) 168.

Madhav Rao Jivaji Rao Scindia v. Union of India, (1971) 1 SCC 85.

Maharaja Chintamani Saran Nath Chahdeo v. State of Bihar, 1999 (4)R.C.R.(Civil) 715.

Nani Gopal Mitra v. State of Bihar, AIR 1970 Supreme Court 1636.

Shyam Sunder v. Ram Kumar , 2001 AIR (SC)2472.

State of West Bengal v. Union of India, (1964) 1 SCR 371.

T.Barai v. Henry Ah Hoe, 1983 AIR (SC) 150.

Thirumalai Chemicals Ltd. v. Union of India, 2011(6) SCC 739.

JUDGMENT
Rajbir Sehrawat, J. (Oral) - This Order shall dispose of a bunch of 14 petitions, challenging the Orders passed by the Trial Courts in the trials under Section 138 of the Negotiable Instruments Act 1881(hereinafter referred to as`the Act'), whereby the Trial Courts have ordered the accused/petitioners to pay 20% or less of the cheque amount to the complainant under Section 143-A of the Act, as well as the petitions challenging the Orders passed by the Appellate Courts directing the convicts/appellants/petitioners herein to deposit 20% or more of amount of fine or compensation awarded by the Trial Court, during the pendency of the appeal, by exercising powers under Section 148 of the Act.

2. CRM-M-13039-2019, CRM-M-13892-2019, CRM-M-14462-2019 CRR-9872-2018 are the petitions wherein the Orders passed by the Trial Court under Section 143-A of the Act are under challenge and the CRM-M-49024-2018, CRM-M-49216-2018, CRM-M-49054-2018, CRMM- 49055-2018, CRM-M-49182-2018, CRM-M-12625-2019, CRM-M- 15297-2019, CRM-M-61716-2018, CRR-721-2019, CRR-746-2019 are the petitions where in the Orders passed by the Appellate Court under Section 148 of the Act are under challenge.

3. It deserves to be noted that there is no dispute on facts of the case in either of the petitions. The Orders have been impugned in all these petitions only on purely legal ground that under Section 143-A and Section 148 of the Act, the Courts below cannot be deemed to have any authority, retrospectively, to pass the Order imposing the liability of payment of the amounts, mentioned in the impugned orders, in the pending trial or in the pending appeals.

4. Another aspect which deserves to be clarified at the outset is that the Orders impugned in these petitions have been passed by the Courts below by virtue of the powers conferred under Section 143-A of the Act during the trial, and under Section 148 of the Act during the pendency of appeal. Both these sections were not in existence in the Act earlier. Both these sections were added vide Amendment No.20 of 2018. In none of the petitions, the vires of these provisions are under challenge. Hence, this Court is proceeding on the presumption that the sections introduced by the Amendment Act, are validly operating law.

5. The only challenge raised by the respective petitioners, in all these petitions, is that since the Amendment Act has been enforced with effect from 02.08.2018, therefore, these provisions cannot be made applicable to the cases, where the trials for offence under Section 138 of the Act were already pending or where the appeals have arisen from such trials, which were pending on the date of the enforcement of these provisions. Hence, in essence, the grounds for challenge, in all the petitions, is that applying these provisions to the cases already pending before the Courts would tantamount to giving these provisions retrospective operation, although, the Amendment Act does not prescribe for retrospectivity in application of these provisions. Hence these provisions have to be taken as applicable only prospectively, to the cases which arise after introduction of these provisions.

6. Before proceeding further, it is apposite to take note of the provisions, which have been introduced by Section 143-A and Section 148 of the Act, which are as reproduced herein below:-

"143-A. 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 sub-section (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.
(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.
148. Power of Appellate Court to order payment pending appeal against conviction-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), in an appeal by the drawer against conviction under section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial Court:
Provided that the amount payable under this sub-section shall be in addition to any interim compensation paid by the appellant under section 143A.
(2) The amount referred to in subsection( 1) shall be deposited 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 appellant.
(3) The Appellate Court may direct the release of the amount deposited by the appellant to the complainant at any time during the pendency of the appeal.
Provided that if the appellant is acquitted, the Court shall direct the complainant to repay to the appellant the amount so released, with interest at the bank rate as published by the Reserve Bank of India, prevalent at the beginning of the relevant financial year, 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."
7. As stated above, the above said provisions were added to the Negotiable Instruments Act by Amendment Act No.20 of 2018. Section 1 (2) of the above said Amendment Act read as under:-

(2) It shall come into force on such date as the Central Government may, by the notification in the Official Gazette, appoint.
8. The Central Government had published this amendment in the notification dated 02.08.2018; after the same having received assent of the President of India on the same date.

The Statement of Objects and Reasons of the above said amendment reads as under:-

"The Negotiable Instruments Act, 1881 (the Act) was enacted to define and amend the law relating to Promissory Notes, Bill of Exchange and Cheques. The said Act has been amended from time to time so as to provide, inter alia, speedy disposal of cases relating to the offence of dishonor of cheques. However, the Central Government has been receiving several representations from the public including trading community relating to pendency of cheque dishonor cases. This is because of delay tactics of unscrupulous drawers of dishonoured cheques due to easy filing of appeals and obtaining stay on proceedings. As a result of this, injustice is caused to the payee of a dishonoured cheque who has to spend considerable time and resources in court proceedings to realize the value of the cheque. Such delays compromise the sanctity of cheque transactions.
2. It is proposed to amend the said Act with a view to address the issue of undue delay in final resolution of cheque dishonour cases so as to provide relief to payees of dishonoured cheques and to discourage frivolous and unnecessary litigation which would save time and money. The proposed amendments will strengthen the credibility of cheques and help trade and commerce in general by allowing lending institutions, including banks, to continue to extend financing to the productive sectors of the economy.
3. It is, therefore, proposed to introduce the Negotiable Instruments(Amendement) Bill, 2017 to provide, inter alia, for the following, namely:-
(i) to insert a new section 143A in the said Act to provide that the Court trying an offence under Section 138, may order that drawer of the cheque to pay interim compensation to the complainant, in a summary trial or a summons case, where he plead not guilty to the accusation made in the complaint; and in any other case, upon framing of charge. The interim compensation so payable shall be such sum not exceeding twenty per cent of the amount of the cheque; and
(ii) to insert a new section 148 in the said Act so as to provide that in an appeal by the drawer against conviction under Section 138, the Appellate Court may order the appellant to deposit such sum which shall be a minimum of twenty per cent of the fine or compensation awarded by the trial court.
4. The Bill seeks to achieve the above objectives."
9. A bare perusal of the newly added Sections 143-A and 148 of the Act would show that these sections have been added with 'Non- Obstante' clause qua the provisions of Code of Criminal Procedure (hereinafter referred to as `Cr.P.C.'). The provisions of both these Sections have common elements of; giving power to the Trial Court and the Appellate Court to order compensation in favour of the complainant/holder of the cheque in due course. Further, common element in both these sections is that; in case the accused is acquitted then the complainant would be required to return the amount so obtained through the court orders, with Bank rate interest. However, there are certain striking differences between the provisions as contained in these two sections. Whereas Section 143-A of the Act gives power to the Trial Court to direct the accused to 'pay' an interim compensation which cannot be more than 20% of the 'cheque amount', at the same time Section 148 of the Act empowers the Appellate Court to direct the accused/appellant to 'deposit' minimum of 20% of 'fine' or 'compensation' awarded by the Trial Court. Hence, whereas the Trial Court cannot award more than 20% of the cheque amount, the Appellate Court is ordained to award not less than 20% of the fine or compensation. Furthermore, under Section 143-A of the Act, the Trial Court is required to order the accused to pay the said amount as interim compensation directly to the complainant. Under Section 148 of the Act, the Appellate Court is required to direct the accused/appellant to `deposit' the said amount with the Court, which the court may subsequently order disbursal to the complainant/holder of the cheque in due course. As per the provision of Section 148 of the Act, the amount ordered by the Appellate Court shall be in addition to any interim compensation already paid by the accused under the order of the Trial Court. Still further, difference between these two provisions is that under Section 143-A of the Act, the amount of interim compensation awarded by the Trial Court is prescribed to be recovered under Section 421 of Cr.P.C, if not paid within specified time, whereas there is no such corresponding provision in Section 148 of the Act. Section 148 of the Act does not prescribe any mode of recovery of amount of interim compensation awarded by Appellate Court.

10. Further, a perusal of the statement of object and reasons for introducing these provisions also shows that the provisions are being added with a view to address the issue of undue delay in final resolution of the cheque dishonor cases and to provide interim relief to the holder of the cheque in due course, as well as, to discourage the frivolous and unnecessary litigation; besides strengthening the credibility of the cheques as mode of payment; so as to help the trade and commerce in general and the lending institutions and the banks in particular in extending financial facilities to productive sectors of economy. It is in this gamut of statutory provisions; that the present petitions have arisen.

11. While arguing the case, Mr. Ferry Sofat, learned counsel for the petitioners have submitted that since the newly added provision of Section 143-A of the Act is not specifically made retrospective in operation by the Amendment Act and it casts a new 'obligation' upon the accused and this obligation is substantive in nature, therefore, the provision cannot be made applicable to the trials in pending cases. Learned counsel has relied upon the judgment rendered in RE; School Board Election For the Parish of Pulborouogh;1894 Queen's Bench Division(725), to support his contention that any law; which seeks to impose any new obligation or liability upon a party; cannot be made applicable to the proceedings already pending before the Court before introduction of such a provision. To support his arguments he has also relied upon the judgment of the Hon'ble Supreme Court rendered in Hitendra Vishnu Thakur and others etc v. State of Maharashtra and other; AIR 1994 Supreme Court 2623, Maharaja Chintamani Saran Nath Chahdeo v. State of Bihar; 1999 (4)R.C.R.(Civil) 715 and another judgment of Hon'ble Supreme Court rendered in Nani Gopal Mitra v. State of Bihar; AIR 1970 Supreme Court 1636. Explaining his argument further, learned counsel has further submitted that since the liability imposed upon the petitioner, by the newly introduced provision, is in the nature of legally enforceable liability, therefore, it is a new and substantive obligation as per the law and not merely a part of the procedure. Learned counsel has submitted that had the present provision been procedural in nature then the same may have been applied to the pending cases, however, since it affects the substantive rights of the accused/petitioners, therefore, it cannot be applied to the pending cases; by giving retrospectivity to this provision.

12. Mr. Dinesh Arora, learned counsel who is appearing for the petitioners in the cases arising out of the appeals, has submitted that any law which creates a new responsibility upon the appellant during the appeal can also not be applied retrospectively. Hence the provision contained in newly added Section 148 of the Act cannot be applied to the appeals which were pending on the date of enforcement of the amendment, or to the appeals filed in those cases where the trials were pending on the date of enforcement of the amended provision. To substantiate that this provision casts a new substantive obligation upon appellant, the counsel has submitted that although at the conclusion of trial, the Trial Court can award a compensation in favour of the holder of the cheque in due course, however, since appeal is in continuation of the trial, therefore, fine or the compensation awarded by the Trial Court cannot be taken as final. However, under the new provision the fine or compensation awarded by the Trial Court have been given attributes of finality. Under the amended provisions, it has been provided that the compensation ordered by the Trial Court or the Appellate Court under provision of Section 143-A of the Act or Section 148 of the Act, would be recoverable as per the procedure prescribed for recovery of fine. Hence, the 'interim compensation' has been raised to the level of 'finality of the fine' which can be recovered under Section 421 of Cr.P.C. This tantamounts to treating the petitioners as guilty even before finalization of their trials and the appeals and thus subjects the appellant to the rigour of Section 421 Cr.P.C; for the purpose of recovery of the interim compensation. However, section 421 Cr.P.C itself invites drastic and substantive measures qua the person against whom fine has been imposed, including attachment and sale of his properties. Therefore, since; even property right of the petitioners have been subjected to final consequences; even during pendency of the appeal against their conviction, therefore the provision has the effect of infringing upon the substantive rights of the petitioners. Therefore, the consequence of application of this section are in the nature of 'punishment'. Hence, such a provision cannot be made applicable to the appeals arising from conviction for a transaction of cheque default, which had taken place before enforcement of the Amendment Act. Learned counsel has relied upon the judgment of the Hon'ble Supreme Court rendered in T.Barai v. Henry Ah Hoe and another;1983 AIR (SC) 150, Dayal Singh v. State of Rajasthan; 2004 AIR SCC 2608, Basheer @ N.P.Basheer v. State of Kerala;2004(1) R.C.R (Criminal)1008. Learned counsel has further argued that the object and reasons of the Act as well as the parliamentary debates, which had taken place at the time of enacting these provisions, also shows that the provision is not procedural in nature. The debates and the objects and reasons; would show that the idea behind this amendment was not to streamline any procedure. Rather the idea is to grant relief to the complainant/holder of the cheque in due course; during the trial itself, at the cost of the accused, even before the latter is held guilty of the offence. Hence, application of this provision to pending appeals is introducing a kind of presumpting punishment in retrospectivity, which is prohibited by Article 20 of the Constitution of India.

13. Mr. Manoj Pundir, learned counsel for another petitioner has relied upon the judgment of the Hon'ble Supreme Court rendered in Anil Kumar Goel v. Kishan Chand Kaura;2008(1)R.C.R(Criminal)290 to submit that in case of another provision of the same Act, whereby the power was sought to be given to the Magistrate to extend the time period for filing of the complaint, Hon'ble Supreme Court has held such a provision to be substantive in nature and the same was held inapplicable to the cases where time of 30 days for filing complaint had already expired before that amendment. The same is the situation qua the present amendment also since this also; affects the substantive right of the petitioners. Hence, being a substantive provision, the provision of Section 143-A and Section 148 of the Act cannot be made applicable restrospectively; to the cases which were already pending on the date of enforcement of these provisions.

14. The other learned counsels appearing for the petitioners have also argued on the similar lines; by emphasizing that any provision which has the potential of effecting the substantive right of a litigant cannot be applied to the pending cases so as to give retrospectivity to the same unless the same is made retrospective by the Act itself. It is further pointed out by the learned counsels that the Courts below have passed the conditional orders of granting bail during pendency of the appeal; subject to deposit of the amounts ordered by the Appellate Court. This kind of condition is violative of the right of the appellant to seek suspension of sentence. Hence, the petitioners could not be subjected to this kind of onerous condition by introducing a new provision during pendency of the trial or the appeal arising therefrom. It is submitted by them that the Hon'ble Supreme Court has already held in some of the cases that even though the Appellate Court may impose condition of deposit of some amount for suspending of the sentence, however, such an amount has to be reasonable and not excessive. By virtue of the present amendments the petitioners have been subjected to payment of compensation upto 40-50% of the cheque amount or of the compensation, only for suspension of their sentence. Therefore, the provision creating this kind of unreasonable condition could not have been applied retrospectively. It is further argued by the counsels that even at the stage of trial, the amount ordered by the Trial Court to be paid as interim compensation, in a given case, can be such an excessive and prohibitive amount that the accused may not be able to arrange for the same. In such a situation, the accused would not be left with any alternative but to suffer in silence the consequences of coercive procedure of recovery of the amount as fine, as prescribed under Section 421 Cr.P.C. Hence, the provision being extremely substantive in nature, could not have been applied by the Courts below to the pending cases; so as to confer retrospectivity upon it.

15. On the other hand, Mr. Rajesh Sethi, learned counsel, appearing for the complainant/respondent in revision petitions arising from the Orders passed in appeals, have submitted that, in the first instance, the provision introduced by Section 143-A and 148 of the Act are not substantive in nature. These provisions have been created only as steps in procedure to streamline the same, so as to cut the unnecessary delays in conclusion of the trials. This is so specifically stated as well, in the objects and reasons of the amendment. While interpreting such a provision, the Court should adopt a purposive interpretation, to give effect to the intention of the legislator, which in the present case is to curb the delay in trial and to discourage default in Negotiable Instruments. Learned counsel has further submitted that to arrive at a correct purposive interpretation, the Court can very well take help of the internal aids of interpretation, such as language, title and positional sequence of the provision and the external aid of interpretation like the objects and reasons and the parliamentary debates. If all these things are commulatively seen in the present case; then the only predominant intention of the legislator is to curb the delay in procedures. Hence, the amendment is only procedural in nature. It is further submitted that the fact that the provisions are procedural in nature is also clear from the fact that these sections have been added in the statute at a place after the sections defining the penal provisions, and has been put alongwith the provisions dealing with the procedure. Learned counsel has further submitted that even if the provision is taken to be affecting some aspect of right of party to the lis; still the same can be applied to the pending proceedings. Every provision effecting some part of right of party to the lis cannot be taken to be a provision effecting the substantive right of the party. Referring to the judgment of the Hon'ble Supreme Court rendered in Shyam Sunder and another v. Ram Kumar and another; 2001 AIR (SC)2472; learned counsel has submitted that in that case the right of the co-sharer under Punjab Pre-emption Act was abolished by way of Amendment Act. The same was upheld and made applicable even to the pending cases, except to those where the right of such a co-sharer had already crystalised by way of decree of the Court. Hence, unless a right is a vested right; by way of decree of the Court or made so by the provision of the Act, the applicability of the amendment qua such right cannot be questioned only on the ground that some aspect of such right of the party is taken away by the amendment. To buttress his argument further, learned counsel for the respondent has proceeded further that if after filing of the suit the Court fees is enhanced by amending an Act, the applicability of such a provision to the appeal arising from the suit cannot be excluded merely on the ground that the amendment to the Court Fee Act was made during pendency of the suit. Still further it is submitted by learned counsel that if a provision essentially relates to the procedure then merely because it can, collaterally, has some effect on substantivity, cannot be precluded from application to the appeals; which are already pending. Citing an another example, learned counsel for the respondent has submitted that Section 100 of Civil Procedure Code was amended to provide that second appeal would lie only in those cases which involves substantial questions of law. This provision was held applicable even to the pending cases by the Hon'ble Supreme Court, despite the fact that it had the effect of summary dismissal of the appeal in those cases where no such substantial question of law was involved. In such a situation, the appellant cannot claim that his right to file appeal has been adversely affected, therefore, such a provision should not be applied to the pending cases.

16. Extending his argument further, learned counsel for the respondent has submitted that in case of a trial; a right can be said to be a substantive right only if it affects right to prosecute or to defend the charge. However, in the present case, the provision no where affects the right of the accused to defend himself. The provision, per se, does not prescribe for any disqualifying consequences; in case of non-deposit of the amount as ordered by the Appellate Court, qua the right of the accused/appellant to prosecute his appeal or to defend himself. Hence, the provision has been enacted only by way of streamlining the procedure and practice of the Court, and if provision relates to the procedure and practice of the Court, the same can be applied to the pending cases. In the end, it is submitted by learned counsel for the respondent that right to appeal is only a statutory right. A person cannot claim a right to file or to prosecute the appeal in any particular manner or according to particular procedure or provision. The appeal has to be filed and carried on only subject to the provisions governing such an appeal at the relevant stages. Hence, any provision which is created during the pendency of the appeal, qua filing or prosecuting the appeal has to be made applicable to all the cases pending at the time or to be filed after the date of enforcement of the provision.

17. Having heard the learned counsel for the parties and perusing the documents on record, it is clear that the dispute between the parties is relating to the applicability of Section 143-A and Section 148 of the Act, introduced vide Amendment dated 02.08.2018, to the cases which were already pending at the stage of the trial; or to the appeals arising from such trials, whether filed before or after the enforcement of the above-said provisions. Another significant aspect to be noted is that the Amendment Act has not specifically made the amendment to be applicable retrospectively. The notification of the amendment also does not specify any other date for the amendment to come in operation. In such a situation, Section 5 of the General Clauses Act would be of some help, which is reproduced below:-

5 Coming into operation of enactments.
(1) Where any Central Act is not expressed to come into operation on a 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.
(3)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.
18. A bare perusal of this provision would make it clear that any Act of Parliament shall come into operation on the day on which it receives the assent of the President. Unless it is expressed to become operational on any other date and unless a contrary intention is expressed, the Act shall come into effect qua all cases on the day of its commencement. In the present case, the Act of Parliament has specified that it shall come into operation on the date specified in the notification. The notification has been issued by the Parliament on 02.08.2018. It is stated to have received the assent of the President on 02.08.2018 only. Hence, the same can be safely taken to be operational with effect from 02.08.2018. As stated above, the vires of the provision are not under challenge in these petitions, therefore, for the purpose of the present petitions, this Court has to assume that the Amendment Act, and the provisions contained therein, have validly come into operation on 02.08.2018.

19. Having said so, the real dispute starts. Learned counsel for the petitioners have stated that they have no cavail qua the applicability of the amended provisions with effect from 02.08.2018. However, these have to be applied only to the cases arising from transactions of default of cheques; which take place after the introduction of these provisions. If the cheques already stood defaulted, the complaints already stood filed and the trial or appeal arisen from such transactions are pending, then these provisions cannot be applied to such cases; them because this would tantamount to give the retrospective effect to the amendment, despite the fact that the legislature has not provided for restrospective application of these provisons. As stated above, learned counsels have argued that the amendments create a new liability/obligation upon the accused, although his act; liable to be punished; already stood committed on a prior date, when such an obligation was not contemplated by law. Hence this would tantamount to affecting the substantive right of the accused. Therefore, by no means, such an amendment can be treated to be procedural in nature. Hence, the same does not deserve to be applied to the pending cases.

20. This Court finds that the Supreme Court has amply clarified the legal proposition that all substantive laws have to be prospective in nature and applicability; unless prescribed to be retrospective, whereas all procedural laws have to be applicable to all cases immediately on their coming into operation, including the pending cases. It is appropriate to have reference to the law pronounced by the Hon'ble Supreme Court in the judgment rendered in Anil Kumar Goel v. Kishan Chand Kaura; 2008(1)R.C.R.(Criminal)290, which reads as under:-

"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 in 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., Chandigarh etc. etc. v. Central Government and Ors.,1984(1)RCR (Rent) 168)."
21. Clarifying further, the Supreme Court has held that all those laws which affect the substantive and vested rights of the parties have to be taken as substantive law, whereas any provision of law dealing with the form of the trial, mechanism of the trial or procedure thereof, has to be treated as procedural in nature. The relevant part of the judgment of the Hon'ble Supreme Court in case of Thirumalai Chemicals Ltd. v. Union of India and others; 2011(6) SCC 739 is as follows:-

"14. Substantive law refers to body of rules that creates, defines and regulates rights and liabilities. Right conferred on a party to prefer an appeal against an order is a substantive right conferred by a statute which remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication. Procedural law establishes a mechanism for determining those rights and liabilities and a machinery for enforcing them. Right of appeal being a substantive right always acts prospectively. It is trite law that every statue is prospective unless it is expressly or by necessary implication made to have retrospective operation. Right of appeal may be a substantive right but the procedure for filing the appeal including the period of limitation cannot be called a substantive right; and aggrieved person cannot claim any vested right claiming that he should be governed by the old provision pertaining to period of limitation. Procedural law is retrospective, meaning thereby that it will apply even to acts or transactions under the repealed Act."
22. Therefore, the next question to be considered by this Court, in the present case is whether the provisions contained in Section 143-A and Section 148 of the Act are substantive in nature or the procedural one. If the provisions are substantive in nature then the same cannot be applied retrospectively to the pending cases. However, if the same are procedural in nature then the same has to be applied to all the cases, including the one pending before the Court on the date, the amendment was enforced.

23. The substantive right of a person is the entitlement which is available to him by virtue of his very existence or which relates to his being, belongings or the estates. Such rights can be human rights, constitutional rights or statutory rights. Such substantive rights can have variety of facets; depending upon the factual situation in which such right is to be considered. The substantive rights can be governed by the constitutional or statutory provisions. The statutory provisions created by the competent legislature can prescribed certain conditions for crystallizing the substantive right of the person. In such a situation, once the conditions prescribed for crystallizing such right are fulfilled, such substantive right of a person becomes vested right as well. So all substantive rights are not vested rights but all vested rights are substantive rights.

24. On the other hand, statute can prescribe the procedure for protection, determination or regulation of the substantive rights as well. The procedure would, essentially, be relating to providing remedy, form of adjudication of such a remedy, procedure to be followed by adjudicatory a forum or the mechanism prescribed for enforcement of decision of such forum. Hence, a law which essentially deals with forums of adjudication, procedure of adjudication and the mechanism for enforcement of result of such an adjudication, would essentially be procedural in nature. All rights granted by procedural law would be only procedural rights. As a corollary to this, no procedural right can be either substantive or vested right.

25. Coming to the facts of the present case, the provisions of Section 143-A and Section 148 of the Act reveals that these Sections of the Act start with a non-obstante clause against Code of Criminal Procedure. However, the Hon'ble Supreme Court has already clarified in judgment rendered in Central Bank of India v. State of Kerala and others;2010(8) RCR(Civil)3195 that non-obstante clause, used in provision of a law has to be given only a contextual interpretation and not to be taken as an absolute exclusion or over-riding of the law contained in provisions qua which the non-obstante clause has been used. In this regard, it is relevant to have a reference to the observation made by Hon'ble Supreme Court in paragraph Nos. 28 and 29 of above-said judgment, which are reproduced herein below:-

28. A non obstante clause is generally incorporated in a statute to give overriding effect to a particular section or the statute as a whole. While interpreting non obstante clause, the Court is required to find out the extent to which the legislature intended to do so and the context in which the non obstante clause is used. This rule of interpretation has been applied in several decisions. In State of West Bengal v. Union of India [(1964) 1 SCR 371], it was observed that the Court must ascertain the intention of the legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law and the setting in which the clause to be interpreted occurs.
29. In Madhav Rao Jivaji Rao Scindia v. Union of India and another [(1971) 1 SCC 85] Hidayatullah, C.J. observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but for that reason alone we must determine the scope of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. A search has, therefore, to be made with a view to determining which provision answers the description and which does not.
26. Hence Section 143-A of the Act, for that matter Section 148 of the Act have to be read along-with the relevant and applicable provisions of Cr.P.C, as modified/supplemented by provisions of these two sections. Otherwise also, Section 5 of Cr.P.C provides that nothing in the Code shall effect the provisions contained in any other special law. Therefore, these two sections shall be taken to have effected the provisions of Cr.P.C only to the limited extent, to which the specific provision has been made in these sections, qua the aspect mentioned herein. Otherwise, even the aspect mentioned in these provisions, beyond what is specifically prescribed for in these two sections, have to be followed only as provided in the Cr.P.C. Hence, all the provisions relating to punishment, ex*****on thereof, fine and compensation and recovery thereof, as contained in the Cr.P.C, has to be read in conjunction and in harmony with Section 143-A and Section 148 of the Act.

27. A bare perusal of Section 143-A of the Act shows that this section has given power to the Trial Court to order the drawer of the cheque/accused in the trial, to pay interim compensation to the complainant, where the accused has not pleaded guilty of the acquisition made against him. Still further, although a limit of '20% of cheque amount' has been imposed upon power of the Court for ordering interim compensation, however, it has also been provided that if it is not paid within 60 days from the order or within the time, extended by the Court, if any, then the interim compensation shall be recovered under Section 421 Cr.P.C, as if it were a 'fine' imposed upon the accused. Although this Section also provide return of the said amount, in case the accused is acquitted, and for adjustment of the said amount of interim compensation towards final compensation or fine; in case of his conviction, however, till any final order is passed, the accused remains liable for recovery of this amount under Section 421 of Cr.P.C. It would be beneficial to have reference to Section 421 Cr.P.C which is reproduced as under:-

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 moveable 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 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 Sub-Section (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 ex*****on 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."
28. A perusal of Section 421 Cr.P.C shows that this provision is meant for those persons, who have already been sentenced to pay fine. Still further the amount of interim compensation, deemed as fine under Section 143-A of the Act, can be recovered under Section 421 Cr.P.C by attachment and sale of movable and immovable properties of the accused. The same can also be recovered as amounts of arrears of land revenue from movable or immovable property or both, of the accused. Hence, application of this provision has a drastic effect upon the property rights of the accused, and makes him liable for sale of his properties for recovery of amounts, despite the fact that it is yet to be finally determined whether he is guilty of the offence, and as such liable to pay any compensation to the complainant or not. Accordingly, since the amended provision provides for enforcement of recovery of interim compensation by way of coercive procedure, it is nothing but an obligation imposed upon the accused. Section 3 of the Specific Relief Act has clarified the meaning of term `obligation' by defining that any duty enforceable under law is an obligation. As per General Clauses Act, this definition has to be read in all Central Acts unless defined otherwise in the relevant Act. Such an 'obligation' having consequences qua the property rights of the accused cannot; but be treated; as substantive provision effecting his substantive right by casting a substantive obligation upon him, to make the payment of money; and if not paid, making him subject to legal deprivement/disability qua his properties. Therefore, it has to be held that Section 143-A of the Act cast a substantive obligation upon the accused and thereby effect the substantive right of the accused. Since the Amendment Act has not made the provision applicable retrospectively, specifically, to pending cases, hence, it cannot be applied retrospectively, to pending cases; which arose from the default of the accused which has taken place before coming into force of this provision.

29. Another aspect which is clear from Section 143-A of the Act, and which shows that the provision is not procedural, is that this provision is not shown to be as a step toward furtherance of the procedure of trial. The provision is not contemplated as one more step governing, simplifying, or modifying the steps in the trial of the accused by the Court. Accordingly, this section does not authorize the Trial Court to pass any order, having consequences against the accused qua the steps of the trial; in case of nonpayment of interim compensation. This section does not authorize the Court to close the defense or to take any other step for speeding up the trial as such. On the contrary, this provision is intended to create a 'stand alone liability' which has to be discharged independent of the trial and which shall have consequences outside the trial only. Hence, by no means, this provision can be taken as procedural in nature. Needless to say that everything prescribed as part of procedural provisio