Gujarat High Court
Jayshreeben P. Vala vs State Of Gujarat on 27 October, 2023
Bench: J. C. Doshi
NEUTRAL CITATION
R/SCR.A/13705/2023 ORDER DATED: 27/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CRIMINAL APPLICATION (QUASHING) NO. 13705 of 2023
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JAYSHREEBEN P. VALA
Versus
STATE OF GUJARAT
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Appearance:
MR. JAY M THAKKAR(6677) for the Applicant(s) No. 1
MR K M ANTANI APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE J. C. DOSHI
Date : 27/10/2023
ORAL ORDER
Order dated 29/03/2023 passed by the learned Additional
Chief Judicial Magistrate, Rajkot in Criminal Case No.7348 of
2014 denying the permission to the petitioner-accused for cross-
examination of the complainant inter alia on the ground that
petitioner has not deposited 20% of the cheque as interim
compensation under Section 143(a) of the Negotiable
Instruments Act, 1881 (for short the NI Act) is sought to be
challenged in this petition under Article 226 and 227 of the
Constitution of India and under Section 482 of the Code of
Criminal Procedure.
2. Short facts of the case are that some loan transaction took
place between the org. complainant and accused and pursuant
to that a cheque bearing No.534359 dated 01/08/2014 in the
sum of Rs.5.00 Lakh of Oriental Bank of Commerce, Rajkot
Branch tendered by the accused and having deposited with the
Bank, it got dishonoured for the reason ' funds insufficient'. That
NEUTRAL CITATION
R/SCR.A/13705/2023 ORDER DATED: 27/10/2023
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after due procedure statutory notice came to be issued which
remained non-complied with the complainant filed the aforesaid
Criminal Case. After verification, learned Court below issued
process against the petitioner and plea of the petitioner was
recorded whereby he denied charges and claimed to be tried and
as such case was posted for recording of evidence of the
complainant. During the said proceeding, in application below
Exh.31, on 29/03/2023 learned court passed an order imposing
condition to deposit 20% of the cheque amount which has been
made pre-condition for cross-examination of the complainant.
3. Heard learned Advocate for the petitioner. Relying upon the
decision in case of G. J. Raja vs. Tejraj Surana [(2019) 19 SCC
469] he would contend that Section 143(a) of the NI Act is
inserted by the Act No.20 of 2018 and Section 2 with effect from
01/09/2018 as prospective effect and not the retrospective
effect. He would further submit that cheque in question issued
in the year 2014 and Criminal Case is also filed in the year
2014. Thus, view of the learned court below to impose condition
of deposit of 20% of the cheque amount towards the costs under
Section 143(a) of the NI Act and applying it retrospectively is
incorrect reading of law. Referring to another judgment in case
of Noor Mohammed vs. Khurram Pasha [(2022) 9 SCC 23]
learned Advocate would further submit that right to cross-
examination cannot be denied on account of failure on part of
the accused to deposit such amount as ordered. Thus, by
making above submissions, it would urge to allow this petition.
4. Learned APP without controverting anything further would
submit that appropriate order may be passed.
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R/SCR.A/13705/2023 ORDER DATED: 27/10/2023
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5. Having heard the learned Advocate for the petitioner and
considering the impugned order which is written with totally
ineligible handwriting, it appears that learned Court below has
totally misread the law laid down in case of G. J. Raja (supra).
Relevant observations thereof in paragraph 19 to 21 reads thus:
"19. It must be stated that prior to the insertion of Section 143A in
the Act there was no provision on the statute book whereunder even
before the 4 (1997) 7 SCC 131 Criminal Appeal No. 1160 of 2019 @
SLP(Crl.)No.3342 of 2019 G.J. Raja vs. Tejraj Surana pronouncement
of the guilt of an accused, or even before his conviction for the offence
in question, he could be made to pay or deposit interim
compensation. The imposition and consequential recovery of fine or
compensation either through the modality of Section 421 of the Code
or Section 357 of the code could also arise only after the person was
found guilty of an offence. That was the status of law which was
sought to be changed by the introduction of Section 143A in the Act.
It now imposes a liability that even before the pronouncement of his
guilt or order of conviction, the accused may, with the aid of State
machinery for recovery of the money as arrears of land revenue, be
forced to pay interim compensation. The person would, therefore, be
subjected to a new disability or obligation. The situation is thus
completely different from the one which arose for consideration in
Employees' State Insurance Corporation4 case.
20. Though arising in somewhat different context, proviso to
Section 142(b) which was inserted in the Act by Amendment Act 55 of
2002, under which cognizance could now be taken even in respect of
a complaint filed beyond the period prescribed under Section 142(b)
of the Act, was held to Criminal Appeal No. 1160 of 2019 @
SLP(Crl.)No.3342 of 2019 G.J. Raja vs. Tejraj Surana be prospective
by this Court in Anil Kumar Goel v. Kishan Chand Kaura5. It was
observed:-
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R/SCR.A/13705/2023 ORDER DATED: 27/10/2023
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"10. There is nothing in the amendment made to Section 142(b)
by 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 providing for extending the period of limitation
on sufficient cause being shown would be enacted."
21. In our view, the applicability of Section 143A of the Act must,
therefore, be held to be prospective in nature and confined to cases
where offences were committed after the introduction of Section 143A,
in order to force an accused to pay such interim compensation."
6. Thus, imposition of condition of deposit of 20% of the
cheque amount and failure thereof close the right of the accused
of cross-examination is a gross error committed by the learned
Court below. The criminal jurisprudence guaranteed the
principle of fair trial. In the present case, on misreading of the
law, the learned Court below has passed the impugned order
denying the right of the accused to cross-examination which is
in violation of principle of fair trial.
7. In the result, the petition is allowed. The impugned order is
quashed and set aside. Petitioner - accused is given liberty to
cross-examine the complainant. Needless to observe that since
the case is of the year 2014, the learned court below to conclude
the trial within a period of three months from the date of the
receipt of the writ of this order. Direct Service is permitted.
(J. C. DOSHI,J)
sompura
