Applicability Of S.148 NI Act Will Extend To Appeals Arising Out Of Complaint Cases Filed Prior To 2018 Amendment: Delhi High Court

The Delhi High Court has observed that the applicability of Section 148 of the Negotiable Instruments Act, 1881 will be extended to appeals arising out of complaint cases that have been filed prior to the amendment of 2018.

Justice Chandra Dhari Singh was dealing with a batch of pleas seeking setting aside of order dated 5th February, 2022 passed by Additional Sessions Judge, Saket Courts.

It was argued by the petitioners that sec. 148 of the NI Act was never intended to be made applicable to all pending appeals but only for the appeals which were filed after the amendment came into force. It was added that the that the amended provisions are not retrospective for appeals filed prior to the amendment.

It was also submitted that even if the amendment is considered to be retrospective, the retrospectivity is limited to the extent that the complaint case in question had been filed before the amendment but the appeal against such an order/judgment passed in the complaint case is filed after the amendment.

On the other hand, the respondent had opposed the submission by arguing that there was no doubt to the fact that the amendment that came into force on 1st September, 2018, thereby, introducing sec. 148 to the NI Act, is retrospective in nature.

Dealing with the question as to whether the amendment of 2018, introducing sec. 148 of the NI Act, is retrospective in nature or not, the Court was of the view that since the provision itself does not make any suggestion to question of extent applicability of the provision, it was pertinent to refer to the judgment of Supreme Court in Surender Singh Deswal case.

The Court thus reiterated that relief under sec. 148 will be available to the complainant against the convict or appellant for such cases, where the complaint case pertains to a time prior to the amendment and introduction of sec. 148 of the NI Act, even though the appeal pertains to a time post the amendment.

"…intention of the legislature is evident from a bare reading of the Statement. The purpose underlaid in the amendment of the Act is facilitation of speedy and effective disposal of matters initiated under the NI Act, specifically under Section 138. The second purpose is that the right to appeal is not misused at the expense of the complainant only to delay meeting the ends of justice. It has been observed that the convicts often obtain stay of order of sentence in the garb of filing an appeal and the proceedings in the appeal are kept pending for years and decades with no consequence and no relief for the complainant in any manner," the Court said.

It added that the aim of the legislature was also to avoid frivolous litigations and to save time, money and other resources of the Courts as well as the parties.

In this backdrop, the Court said:

"Keeping in view the objective of the amendment, it is proper to say that to avoid frivolous, unnecessary and unscrupulous litigations and proceedings, the Court concerned may take the required steps to ensure that the appellant has approached the Court with a genuine and real case against the order of conviction and is not wasting the time and resources of the judicial machinery only to delay his conviction and punishment thereof."

"Such a check on filing of appeals cannot be said to be limited to the cases arising only after the amendment. If it is the intention of the legislature to provide for an effective measure to deal with the menace of unnecessary litigations, then such measure may be intended to be applied to cases where the proceedings under appeal are still underway and have been pending for years. In fact, the need to filter out the cases of genuine or frivolous appeals is all the more substantial in cases that have been pending for a long time and wherein no progress is being made for such prolonged periods of time due to the pendency of the appeal proceedings."

The Court thus found that the order passed by the Trial Court was impermissible by law and not in accordance with the statute.

The reasons given were that firstly, the period prescribed for depositing fine awarded under the provision is of sixty days which may be extended for thirty days, yet the Trial Court had only granted a period of one month to the petitioners to deposit 20% of the fine or compensation in favour of the complainant, and secondly, imposing the condition of vacation of suspension of substantive sentence amounted to a review of its own order which was unsustainable by law.

However, to the point of retrospectivity, the Court was satisfied that the contentions and grounds raised on behalf of the petitioners did not stand ground in the peculiar facts and circumstances of the case.

"In view of the discussion above, and also since, it has been established that the applicability of Section 148 of the NI Act will be extended to appeals arising out of complaint cases that have been filed prior to the amendment, it is found that the learned ASJ was not wrong in adjudicating upon an application under section 148 of the NI Act, at the given stage, and imposing the cost/fine/compensation of 20% of the amount imposed by the learned Trial Court," it observed.

Accordingly, while allowing the plea, the Court concluded:

"Keeping in view the facts and circumstances, the contentions and arguments made on behalf of the parties, and the law as interpreted with conjoined reading of the provisions under the NI Act, it is found that the order dated 5th February, 2022 passed by learned Additional Sessions Judge, Saket Courts, Delhi in C.A. 178/2018, C.A. 177/2018, C.A. 176/2018 and C.A. 180/2018, is contrary to law, illegal and hence, it is set aside."

Case Title: HARSH SEHGAL v. STATE & ANR

Citation: 2022 LiveLaw (Del) 470

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