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Amendment of Section 142 NI Act has retrospective effect : Chattisgarh High Court

Ashok KM
6 Sep 2015 2:54 PM GMT
Amendment of Section 142 NI Act has retrospective effect : Chattisgarh High Court
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The Chattisgarh High Court held that Amendment of section 142 of Negotiable Instruments Act, 1881, has retrospective effect. Justice Goutam Bhaduri said that it is an amendment of procedural law and not substantive law and hence it will have a retrospective effect.

Factual Background

Section 138 NI Act complaint was filed by the appellant in JMFC Pamgarh. But the Court returned the said complaint with a finding that the cheques which were drawn were dishonoured at Visakhapatnam, consequently, the Court of JMFC, Pamgarh will not have jurisdiction.The Court of JMFC had followed the law laid down in Dashrath Roopsingh Rathod vs. State of Maharashtra. Sessions court dismissed the revision petition filed by appellant which was also dismissed. Thereafter he approached the High Court.

Question of Law

  • Whether the amendment carried out in N.I. Act, 1881 on 15.06.2015 would have a retrospective operation or would be prospective in nature. AND whether if such amendment has a retrospective effect whether the complaint filed by the petitioner could have been saved?
  • Whether the petitioner can claim restoration of the complaint on the strength of amended Section of 142-A(1)(2) inserted by Negotiable Instrument (Amendment) Ordinance 2015 ?

Section 142 procedural law-has retrospective effect

The court held “Reading of amendment would show that it is an amendment of procedural law and not substantive law”. Relying on (1994) 4 SCC 602 – Hitendra Vishnu Thakur and others Vs. State of Maharashtra and  AIR 1970 SC 1636 – NaniGopalMitra Vs. State of Bihar 1636, the court held that amendment carried out by Ordinance of 2015 (No.6 of 2015) on 15.06.2015 will have a retrospective effect dealing with procedure.

However, the Court refused to pass any order to continue the proceedings since on the date of promulgation of ordnance no complaint was pending before the Court of JMFC. The court said “If it is done, it would amount to legislation. The petitioner(s), therefore, if so advised may file a fresh complaint before Court having jurisdiction.”

The court further said that “if the complaint has already been returned and was not filed before the appropriate forum as per applicable law in force at the prevailing time no complaint would be presumed to be pending at that time. Therefore, there was no question of enquiring into and trying the offence in absence of a complaint”.

Read the Judgment here.

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