ANIL KUMAR GOELversusKISHAN CHAND KAURA

                                     ANIL KUMAR GOEL                                 A
----,;,_                                    v.
           ""                      KISHAN CHAND KAURA
                                      DECEMBER 12, 2007
                      [DR. ARIJIT PASAYAT AND AFTAB ALAM, JJ.]                       B

                       Negotiable Instruments Act, 1881 - -ss. 138 and 142 (b) proviso
                - Insertion ofproviso to s. 142 (b) in 2002 extending the limitation
                period - On facts, successive presentation of dishonoured cheque
                by payee - Events taking place much prior to 2002 - Complaint c
                under section 138 - Maintainability of - Held: Amendment to
                s. I 42(b) not intended to operate retrospectively -Also, payee did
                not take such plea - Thus, order of High Court that complaint u/
                s 138 maintainable on the ground that proviso to s. 142 (b),
                                                                                       D
                empowered the court to extend the limitation period on sufficient
                cause being shown, set aside - Proceedings pursuant to the complaint
    --      I
                quashed.
                      Appellant issued cheque in favour ofrespondcnt on 31.3.1998
                which was dishonoured on presentation on 11.4.1998. The E
                respondent iss11ed a notice to the appellant on 24.4.1998. On
                assurance by the appellant, the cheque was again presented, but
                was again dishonoured on 30.9.1998. The respondent issued notice
                to the appellant on 13.10.1998 but the payment was not made.
                Thereafter, on 28.11.1998, the respondent filed a complaint u/s F
                138 of the Negotiable Instruments Act, 1881. Appellant filed
                application u/s 245 Cr.P.C. for discharge but the same was
                dismissed. Appellant then filed an application u/s 482 Cr.P.C. for
                quashing the complaint u/s 138 of the Act on the ground that the
                complaint was not maintainable in view ofs. 142 (b) of the Act.
                                                                                   G
                The High Court dismissed the application on the ground that
                proviso to s. 142 (b) inserted by Act 55 of2002, empowered the
         ~
                court to extend the limitation period on sufficient cause being
                                                313                                   H
    314     SUPREMECOURTREPORTS [2007] 13(Addl.)S.C.R.

A shown. Hence the present appeal.
                                                                                 ~


          Allowing the appeal, the Court                                   .>-

         HELD: 1.1. Before the amendment, the proviso to clause
  (b) of s. 142 of the Negotiable Instruments Act, 1881 was not
B there. Clause (a) of the proviso to section 138 does not put any
  embargo upon the payee to successively present a dishonoured
  cheque during the period of its validity. This apart, in the course
  of business transactions it is not uncommon for a cheque being
  returned due to insufficient funds or similar such reasons and
c being presented again by the payee after sometime, on his own
  volition or at the request of the drawer, in expectation that it
  would be encashed. The primary interest of the payee is to get his
  money and not prosecution of the drawer, recourse to which,
  normally, is taken out of compulsion and not choice. On each
D
  presentation of the cheque and its dishonour, a fresh 1right and not
  a cause of action - accrues in his favour. Therefore, he may,
  without taking pre-emptory action in exercise of his such right
  under clause (b) of s.ection 138, go on presenting the cheque so
E as to enable him to exercise such right at any point of time during
  the validity of the c~eque. (Para 6) (318-D, E, F, G]
        1.2. All laws that ilffect substantive rights gene1rally operate
  prospectively and there is a presumption against their
  retrospectivity if they affect vested rights and obligations, unless
F the legislative in!ent is clear and compulsive. Such retrospective
                                                                            y
  effect may be given where there are express words giving
  retrospective effeCt or where the language used necessarily implies
  that such retrospeetive operation is intended. Hence, the question
  whether a statutory provision has retrospective 1~ffect or not
G
  depends primarily on the language in which it is couched. 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. (Para 8) (319-D, E, F]
H
             ANILKUMARGOELv.KISHANCHANDKAURA                              315
                        [PASAYAT, J.]
              Mis Punjab Tin Supply Co., Chandigarh etc. etc. v. Central A
          Government and Ors. AIR 1984 SC 87 - relied on.

                2. In the instant case, there is nothing in the amendment
          made to s. 142(b) by Act 55 of2002 that the same was intended
          to operate retrospectively. In fact that was not even the stand of B
          the respondent. 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. Thus, the High Court's view is
          clearly unacceptable and is set aside. The proceeding pursuant to C
          respondent's complaint is quashed. (Paras 9 and 10) [319-G;
          320-A, BJ
               CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
          No. 1704 of2007.
                                                                                D
               From the Judgment and Order dated 16.03.2006 of the High
 .
.-....\   Court of Punjab and Haryana at Chandigarh in CRL.M. No. 10233-M
          of2006.
               Gagan Gupta, Gurpreet Bawa and Parrnanand Gaur, for the E
          Appellant.
               The Judgment of the Court was delivered by
               Dr. ARIJIT PASAYAT, J. 1. Leave granted.
                 2. Challenge in this appeal is to the order passed by a learned F
          Single Judge of the Punjab and Haryana High Court dismissing the
          application filed in terms of Section 482 of the Code of Criminal
          Procedure, 1973 (in short the 'Cr.P.C. ').Appellant had filed a petition
          for quashing the complaint filed by the respondent in terms of Section
          138 of the Negotiable Instruments Act, 1881 (in short the 'Act') In the G
          complaint it was averred that a cheque was issued by the appellant on
          31.3 .1998 which was dishonoured by the bank when presented on
          11.4.1998. Notice dated 27.4.1998 was duly served on the appellant.
          Since the accused appellant assured that the cheque will be honoured H
    316      SUPREME COURT REPORTS               [2007] 13 (Adell.) S.C.R.


A if it is presented again, the cheque was presented but was again
  dishonoured cin 30.9.1998 for which 11otice dated 13.10..19Y8 was
  again served on the appellant. But no payment was made. Appellant
  filed an application in terms of Section 245 of the Code of Criminal
  Procedure, 1973 (in short the 'Cr P.C. ') before the trial court for
B discharge. It was averred that the application was clearly ban·ed by time
  and therefore the said application ought to be dismissed at the outset.
  The motion was opposed by the respondent. The learned Judicial
  Magistrate dismissed the application st1ting that in view of the judgment
  in Ada/at Prasad v. Roop/al Jindal and Others [2004 (7) SCC 338],
c the trial court cannot review or reconsider the order issuing process;
  once process has been issued pursuant to an order passed in a complaint
  case. Appellant filed a petition in terms of Section 482 Cr.P.C. which as
  noticed above was dismissed. It is to be noted that the only stand of the
D appellant before the High Court was that even if the position as stated
  by the respondent is accepted to be correct, in view of Sectiion 142 (b)
  of the Act, a complaint was not to be entertained. High Court dismissed
  the application on the ground that proviso of Section 142 (b) of the Act
  was inserted videAct 55 of2002 which empowered the court to extend
E the period oflimitation on sufficient cause being shown. Therefore, the
  petition was to be dismissed.
         3. In support of the appeal, learned counsel for the appellant
  submitted that the amendment inserted by Act 55 of 2002 had no
  application to the facts of the case as the various events took place much
F prior to 2002 and in fact the complaint was filed on 28.11.1998. It was
                                                                               y
  further pointed out that the case of respondent was not that case in hand
  was covered by the amendment. Ther1~ is no such plea taken. The High
  Court could not have made out a nev.· case.
G         4. There is no appearance on behalf of the respondent.
          5. For resolution of the controversy Sections 138 and 142 of the
    Act are relevant. They read as follows:
          "Section 138:
H
        ANILKUMAR GOEL v. KISHAN CHAND KAURA                           317
                    [PASAYAT, J.]
         Dishonour of cheque for insufficiency, etc. of funds in the A
...."    account - Where any cheque drawn by a person on an account
         maintained by him with a banker for payment of any amount of
         money to another person from out of that account for the discharge,
         in whole or in part, of any debt or other liability, is returned by the
         bank unpaid, either because of the amount of money standing to B
         the credit of that account is insufficient to honour the cheque or
\..t     that it exceeds the amount arranged to be paid from that account
         by an agreement made with that bank, such person shall be deemed
         to have committed an offence and shall, without prejudice to any
         other provision of this Act, be punished with imprisonment for a c
         term which may extend to one year, or with fine which may extend
         to twice the amount of the cheque, or with both:
         Provided that nothing contained in this section shall apply unless-
                                                                               D
         (a) the cheque has been presented to the bank within a period of
~        six months from the date on which it is drawn or within the period
         ofits validity, whichever is earlier;
         (b) the payee or the holder in due course of the cheque, as the
         case may be, makes a demand for the payment of the said amount E
         ofmoney by giving a notice in writing, to the drawer ofthe cheque,
         within fifteen days of the receipt of information by him from the
         bank regarding the return of the cheque as unpaid; and
         (c) the drawer of such cheque fails to make the payment of the F
  ~
         said amount of money to the payee or as the case may be, to the
         holder in due course of the cheque within fifteen days of the
         receipt of the said notice.
         Explanation - For the purposes of this section, "debt or other
         liability" means a legally enforceable debt or other liability. G

          Section 142:
         Cognizance ofoffences - Notwithstanding anything contained in
         the Code of Criminal Procedure, 1973 (2of1974), -
                                                                               H
    318      SUPREME COURT REPORTS                 [2007] 13 (Addi.) S.C.R.

A         (a) no court shall take cognizance ofany offence punishable under
          Section 13 8 except upon a complaint, in writing, made by the
          payee or, as the case may be, the holder in due course of the
          cheque;
B         (b) such complaint is made within one month of the date on which
          the cause of action arises under clause (c) of the proviso to Section
          138;
               (Provided that the cognizance of a complaint may be taken
          by the Court after the prescribed period, ifthe complainant satisfies
c         the Court that he had sufficient cause for not making a complaint
          within such period.)
          (c) no court inferior to that of a Metropolitan Magistrate or a
          Judicial Magistrate ofthe first class shall try any offenae punishable
D         under Section 138."
        6. Before the amendment, the proviso, as quoted above, was
  not there. Clause (a) of the proviso to Section 138 does not put any
  embargo upon the payee to successively present a dishonoured
E cheque during the period of its validity. This apart, in the course of
  business transactions it is not uncommon for a cheque being returned
  due to insufficient funds or similar such reasons and being presented
  again by the payee after sometime, on his own volition or at the
  request of the drawer, in expectation that it would be encashed. The
F primary interest of the payee is to get his money and not prosecution            y
  of the drawer, recourse to which, normally, is taken out ofcompulsion
  and not choice. On each presentation of the cheque an<l its dishonour,
  a fresh right-and not a cause of action - accrues in his favour. He
  may, therefore, without taking pre-emptory action in exercise of his
G such right under clause (b) of Section 138, go on presenting the
  cheque so as to enable him to exercise such right at any point of time
  during the validity of the cheque.
       7. Section 5 ofthe General Clauses Act, 1897 (in short the 'General
H Clauses Act') also throws considerable light on the controversy. Section
   ANILKUMARGOELv.KISHANCHANDKAURA                                  319
              [PASAYAT, J.]
5 reads as follows:                                                       A

      "5. Coming into operation of enactments - (1) Where any Central
      Act is not expressed to come into operation on particular day,
      then it shall come into operation on the day on which it receives
      the assent,-                                                      B
      (a)   In the case of a Central Act made before the commencement
            of the Constitution of the Governor-General and
      (b)   In the case of an Act of Parliament of the President.
      (c)   Unless the contrary is expressed a Central Act or· C
            Regulation shall be construed as coming into operation
            immediately on the expiration of the day preceding its
            commencement."
       8. All laws that affect substantive rights generally operate D
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. E
Hence the question whether a statutory provision has retrospective effect
or not depends primarily on the language in which it is couched. If the
language is clear and unambiguous, effect will have to be given to the
provision is question in accordance with its tenor. Ifthe language is not
clear then the court has to decide whether, in the light of the surrounding F
circumstances, retrospective effect should be given to it or not. (See: Ml
s Punjab Tin Supply Co., Chandigarh etc. etc. v. Central Government
and Ors. AIR 1984 SC 87).
      9. There is nothing in the amendment made to Section l 42(b) G
by the Act 55 of 2002 that the same was intended to operate
retrospectively. In fact that was not even the stand of the respondent.
Obviously, when the complaint was filed on 28.11.1998, the
respondent could not have foreseen that in future any amendment
                                                                        H
    320     SUPREME COURT REPORTS             [2007] 13 (Addl.) S.C.R.


A providing for extending the period oflimitation on sufficient cause
  being shown would be enacted.
        10. That being so the High Court's view is clearly unacceptable.
  The impugned order of the High Court is set aside. The proceeding
B pursuant to respondent's complaint i.e. Complaint No.120 of 1998 in
  the Court of JMIC, Chandigarh, is quashed.
          11. The appeal is allowed.
    NJ.                                                Appeal allowed.
c