Bombay High Court
M/S. Vidarbha Energy And ... vs M/S. Kyoto Merchandise Pvt. Ltd., ... on 5 July, 2021
Bench: Manish Pitale
1 apl-562-2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
Criminal Application (APL) No. 562 of 2021
M/s Vidarbha Energy & Infrastructure Private Limited and Others
Vs.
M/s Kyoto Merchandise Pvt. Ltd. and Another
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Office Notes, Office Memoranda of Coram, Court's or Judge's orders
appearances, Court's orders of directions
and Registrar's orders
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Mr. Masood Shareef, Advocate for the applicants
Mr. Nitin Lalwani, Advocate for the respondent No.1
Ms. Shamsi Haidar, APP for the respondent No.2
CORAM : MANISH PITALE, J.
DATED : JULY 05, 2021
Hearing was conducted through video
conferencing and the learned counsel agreed that the
audio and visual quality was proper.
2. By this Application, the applicants have
challenged orders passed by the Court of Judicial
Magistrate First Class, Nagpur. By the order dated
08/07/2019, the Magistrate directed the applicants to
deposit 20% of the cheque amount as interim
compensation in terms of Section 143A of the
Negotiable Instruments Act, 1881, within 60 days of
the order. By the subsequent impugned order dated
31/03/2021, the Magistrate has rejected an application
filed by the applicants seeking recall of the said order.
The applicants had relied upon judgment of the
2 apl-562-2021.odt
Hon'ble Supreme Court to contend that Section 143-A
of the said Act would not be applicable to the facts of
the present case.
3. The learned counsel for the applicants
invited attention of this Court to judgment of the
Hon'ble Supreme Court in the case of G.J. Raja Vs.
Tejraj Surana, Criminal Appeal No. 1160 of 2019,
decided on 30/07/2019. A copy of the judgment has
been placed on record along with the Application and
according to the learned counsel for the applicants, the
ratio of the said judgment covers the position of law in
favour of the applicants. It is submitted that Section
143A of the aforesaid Act added by amendment in the
year 2018, would not apply to the present case. On
this basis, it is submitted that the application deserves
to be allowed.
4. Mr. Nitin Lalwani, learned counsel has
entered appearance on behalf of respondent No.1. He
fairly submits that the position of law is clearly laid
down by the Hon'ble Supreme Court in the aforesaid
judgment and that it covers the position in favour of
the applicants herein.
5. Ms. Shamsi Haidar, learned APP appeared
on behalf of the respondent No.2 - State.
3 apl-562-2021.odt
6. Section 143-A was added by way of
amendment to the said Act, pertaining to power to
direct interim compensation. This was added by way of
amendment w.e.f. 01/09/2018. There is no dispute
about the fact that in the present case, the alleged
offence under the said Act had taken place in the year
2012. On a question that arose before the Hon'ble
Supreme Court as to the retrospective applicability of
Section 143A of the said Act pertaining to offences
committed prior to introduction of the said provision
by way of amendment, the Hon'ble Supreme Court in
the aforesaid judgment in the case of G.J. Raja Vs.
Tejraj Surana (supra), held as follows :
"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."
7. Thus, it is abundantly clear that in terms of
the law laid down by the Hon'ble Supreme Court, the
impugned order dated 08/07/2019, passed by the
Magistrate is unsustainable. Accordingly, it is set aside.
Resultantly, subsequent impugned order dated
4 apl-562-2021.odt
31/03/2021, also deserves to be set aside for the
reason that the cause for filing the application for recall
does not survive in the present case.
8. In view of the above, the present
Application is allowed in terms of prayer clause (a).
9. Considering the fact that the Complaint
under the provisions of the said Act was filed in the
present case as far back as in the year 2012, the
concerned Court is directed to dispose of the said
Complaint as expeditiously as possible and in any case
on or before 31/07/2022.
JUDGE
MP Deshpande
