On Monday, after the Delhi, the Bar Council of Maharashtra & Goa has strongly objected and protested to the Centre's proposal of Decriminalization of Section 138 of the Negotiable Instruments Act.

In letter sent to the Ministry of Finance, the Bar stated:

"The proposed Decriminalization will cause enormous suffering, hardship on investors, traders and businessmen at large, who would lose hopes in the judicial and democratic system and which will eventually encourage them to resort to old modes of recovery. On the contrary, proposed Decriminalization will erode public and investors confidence since the entire settled business and trade cycle which works of post dated cheque will be totally hampered."

The Council raised objection to this attempt of classifying the offence under Section 138 of the Negotiable Instruments Act and terming the same as 'Minor Offence', 'Merely as Procedural Lapse' and 'Minor Non Compliance' as a totally unreasonable and unrealistic approach thereby giving a total go bye to the consistent judicial pronouncements and contrary to the legislative history, intention, statement and objects of the past amendment brought in from time to time to make the same as more and more stringent and deterrent.

The Council stated:

"The proposed move virtually tends to negate the very basic scope and object of Section 138 of the Negotiable Instruments Act which was brought into action to inculcate the faith and confidence of trading community in the commercial transaction. The proposal is inconsistent with the letter and spirit of the very provisions of the Section 138 of the Negotiable Instruments Act and the amendments therein from time to time. Such a drastic and draconian step by the Government, if implemented, will on the contrary certainly create obstacles, severe impediments in ease of doing business and results will be cascading."

In the letter, it has been urged:

"The sentence imposed will be hardly executable if the offence is decriminalised since there are insurmountable hurdles for recovery of the fine imposed by the sentence in absence of fear of imprisonment thereby rendering the judgement to remain on papers only. It would be merely paper order making it mockery of the otherwise entire well established existing system. Execution of the judgment / order after taking its very essence of criminality will be extremely time consuming, tedious, complicated and a rather impossible task in absence of fear of any deterrent punishment as contemplated under the Act. The Execution of the judgment / order will also necessarily involve separate proceedings which will lead to multiplicity of litigation, increase burden on the existing system, costly and time consuming affair."

It is contended that existing mechanisms and inbuilt safeguards in The Negotiable Instruments Act are ignored while making the proposal.

The letter explained how the law itself protects the interest of honest and bonafide Drawers /Defaulters at different stages.

Stating the above, the Bar remarked:

"In order to carry out the legislative object of the aforesaid provisions of Section 138, it is absolutely just proper and reasonable not only to scrap/drop the proposal of Decriminalization but rather make it more stringent and deterrent so that such matters could be resolved expeditiously as per Section 143 of the Negotiable Instruments Act."

It has been advanced in the letter that the proposed move will certainly affect their livelihood, careers and survival of majority of the Lawyers are practicing in this field of the law at great stake.

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