Sections 143A and 148 NI Act – Retrospective Or Not? Mandatory Or Directory?

Section 143A – Not Retrospective – Directory

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.  [G. J. Raja vs Tejraj Surana 2019 INSC 838 [2019] 10 S.C.R. 910 ]

The exercise of power under sub-section (1) of Section 143A is discretionary. The provision is directory and not mandatory. The word “may” used in the provision cannot be construed as “shall.” – While deciding the prayer made under Section 143A, the Court must record brief reasons indicating consideration of all relevant factors.– The broad parameters for exercising the discretion under Section 143A are as follows: i. The Court will have to prima facie evaluate the merits of the case made out by the complainant and the merits of the defence pleaded by the accused in the reply to the application. The financial distress of the accused can also be a consideration. ii. A direction to pay interim compensation can be issued, only if the complainant makes out a prima facie case. iii. If the defence of the accused is found to be prima facie plausible, the Court may exercise discretion in refusing to grant interim compensation. iv. If the Court concludes that a case is made out to grant interim compensation, it will also have to apply its mind to the quantum of interim compensation to be granted. While doing so, the Court will have to consider several factors such as the nature of the transaction, the relationship, if any, between the accused and the complainant, etc. v. There could be several other relevant factors in the peculiar facts of a given case, which cannot be exhaustively stated. The parameters stated above are not exhaustive.  [Rakesh Ranjan Shrivastava vs State Of Jharkhand 2024 INSC 205 ]

Section 148 – Retrospective – Mandatory (kind of)

Section 148 shall be applicable in respect of the appeals against the order of conviction and sentence for the offence under s.138, even in a case where the criminal complaints for the offence under s.138 were filed prior to amendment Act No. 20/2018 i.e., prior to 01.09.2018 – [ Surinder Singh Deswal v. Virender Gandhi (2019) 11 SCC 341 ]

Though it is true that in amended Section 148 of the N.I. Act, the word used is “may”, it is generally to be construed as a “rule” or “shall” and not to direct to deposit by the appellate court is an exception for which special reasons are to be assigned. Therefore amended Section 148 of the N.I. Act confers power upon the Appellate Court to pass an order pending appeal to direct the Appellant-Accused to deposit the sum which shall not be less than 20% of the fine or compensation either on an application filed by the original complainant or even on the application filed by the Appellant-Accused under Section 389 of the Cr.P.C. to suspend the sentence. The aforesaid is required to be construed considering the fact that as per the amended Section 148 of the N.I. Act, a minimum of 20% of the fine or compensation awarded by the trial court is directed to be deposited and that such amount is to be deposited within a period of 60 days from the date of the order, or within such further period not exceeding 30 days as may be directed by the appellate court for sufficient cause shown by the appellant.[Surinder Singh Deswal v. Virender Gandhi (2019) 11 SCC 341 ]

When suspension of sentence by the trial court is granted on a condition, non- compliance of the condition has adverse effect on the continuance of suspension of sentence. The Court which has suspended the sentence on a condition, after noticing non-compliance of the condition can very well hold that the suspension of sentence stands vacated due to non-complianc-. It is for the Appellate Court who has granted suspension of sentence to take call on non-compliance and take appropriate decision. What order is to be passed by the Appellate Court in such circumstances is for the Appellate Court to consider and decide. However, non-compliance of the condition of suspension of sentence is sufficient to declare suspension of sentence as having been vacated. [ Surinder Singh Deswal @ Col. S. S. Deswal vs Virender Gandhi 2020 INSC 21 : [2020] 1 S.C.R. 395 ]