Petitioner has filed this present petition challenging the order dated 27.08.2024 passed by the III Additional Sessions Judge, Indore whereby the order dated 23.11.2023 passed by the Judicial Magistrate First Class, Indore in SCNIA No. 3839/2018 rejecting the application under Section 143A of the Negotiable Instruments Act, 1881 ('N.I.Act' for short) has been set aside.

2. Facts of the case in short are that the respondent filed a complaint under Section 138 of the N.I.Act before the Court of JMFC, Indore. According to the Signature Not Verified Signed by: SREEVIDYA Signing time: 19-02- 2025 16:06:33 NEUTRAL CITATION NO. 2025:MPHC-IND:4411

-2- MCRC-39012-2024 respondent/complainant, petitioners demanded Rs. 39,00,000/- for expansion, construction and other works of the school from the respondent who was working as the Principal of the petitioner No. 1/school. Having close relation with the petitioners, respondent gave Rs. 39,00,000/- to the petitioners for a short period. In order to return the aforesaid amount, petitioners issued two cheques bearing No. 000286 dated 25.04.2018 and 000287 dated 30.04.2018 of Rs. 19,50,000/- each in favour of the respondent. Respondent presented the aforesaid cheques in his bank account and they were transferred to the bank account of the petitioners but both the cheques were dishonored. Thereafter notice was served and when the amount was unpaid a complaint was filed.

3. During pendency of the complaint, the respondent/complainant filed an application under Section 143A of the N.I.Act seeking direction that the petitioners be directed to pay the interim compensation. The application was opposed by the petitioners. Learned JMFC vide order dated 23.11.2023 has rejected the application on the ground that the provisions of Section 143A which came into effect on 01.09.2018 is prospective in operation and the said provision can be applied or invoked only in cases where the offence under Section 138 of the N.I.Act was committed after introduction of the said Section in the statute book. Since the cheques in question were returned unpaid prior to 01.09.2018, therefore Section 143A of the N.I.Act does not attract.

Signature Not Verified Signed by: SREEVIDYA Signing time: 19-02- 2025 16:06:33 NEUTRAL CITATION NO. 2025:MPHC-IND:4411

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4. Being aggrieved by the aforesaid order, respondent/complainant preferred a criminal revision before the Sessions Court, Indore. Learned Sessions Judge upheld the finding of JMFC that the provisions of Section 143A is prospective in operation but the offence is said to have been committed on 04.09.2018 when the petitioners/accused persons failed to make payment after service of notice under Section 138 of the N.I.Act. Therefore, actual offence was said to have been committed after introduction of Section 143A in the statute on 01.09.2018. Hence, the order was set aside and the matter was remanded back to the JMFC for deciding the amount of compensation. Hence, this revision before this Court by the petitioners/accused.

5. Shri Rishi Tiwari, learned counsel for the petitioners submits that the cheques were dishonored on 23.07.2018. Notice U/S 138 was issued on 20.08.2018 which was received by the petitioners on 24.08.2018 and after expiry of 15 days on 08.09.2018, the complaint was filed on 11.09.2018. Learned Counsel further submits that the offence under Section 138 is said to committed no sooner a cheque drawn by the accused on an account maintained by him in the bank for discharge of debt/liability is returned unpaid for insufficiency of the fund. Therefore, the offence is said to have been committed only on 23.07.2018 i.e. prior to the insertion of Section 143A of the N.I.Act. Therefore, the learned JMFC rightly dismissed the application and the Sessions Court has wrongly set aside it remanded the matter.

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6. In support of the above contention, learned counsel for the petitioner has placed reliance on the judgment passed by the Apex Court in case of G.J.Raja vs. Tejraj Surana , reported in (2019) 19 SCC 469 wherein the Apex Court in paragraph 23 held that, Section 143-A to be prospective in operation and that the provisions of the said Section 143-A 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 143-A in the statute book. Shri Rishi Tiwari, learned counsel has also placed reliance on another judgment of the Apex Court in case of Yogesh Upadhyay & Anr. vs. Atlanta Limited , reported in 2023 SCC OnLine SC 170 wherein the Apex Court has held as under :

7. Learned counsel for the petitioner further relied upon the judgment in case of Vinay Kumar Shailendra vs. Delhi High Court Legal Services Committee & Anr., reported in (2014) 10 SCC 708 wherein the Apex Court has held that an offence under Section 138 of the NI Act is committed no sooner the cheque issued on an account maintained by the drawer with a bank and representing discharge of a debt or a liability is dishonored on the ground of insufficiency of funds. However, prosecution of the offender and cognizance of the commission Signature Not Verified Signed by: SREEVIDYA Signing time: 19-02- 2025 16:06:33 NEUTRAL CITATION NO. 2025:MPHC-IND:4411

-5- MCRC-39012-2024 of the offence is deferred by the proviso to Section 138 the NI Act till such time the complainant has no cause of action to institute such proceedings.

8. Per contra, learned counsel appearing for the respondent has placed reliance on the judgment passed by the High Court of Judicature for Rajasthan Bench at Jaipur in case of Rashmi Khandelwal vs. Kanhiyalal, S.B.Criminal Miscellaneous (Petition) No. 1623/2019 dated 16.01.2025 wherein it has been held as under :

9. For ready reference, Section 138 of the N.I.Act is reproduced below :

10. Admittedly, in the present case both the cheques were dishonored on 23.07.2018. Notices were issued on 20.08.2018 and received on 24.08.2018 i.e. prior to 01.09.2018. The period for payment was completed on 08.09.2018 and thereafter complaint was filed on 11.09.2018. Therefore, the cheques were returned unpaid prior to 01.09.2018 but the complaint was filed after 01.09.2018.

11. Section 138 of the N.I.Act says that a person shall be deemed to have committed an offence and shall be punished with imprisonment if the cheque drawn by him on an account maintained by him issued for payment of any amount or money in discharge of any debt or liability is returned by the bank unpaid. But as per proviso to Section 138 , nothing shall apply unless the cheque has been presented to the bank within a period of six months from the on which it is drawn or within the period of its validity. The payee or the holder in due Signature Not Verified Signed by: SREEVIDYA Signing time: 19-02- 2025 16:06:33 NEUTRAL CITATION NO. 2025:MPHC-IND:4411

-7- MCRC-39012-2024 course of the cheque makes a demand for payment of the said amount within thirty days on receipt of the information from the bank regarding return of the cheque as unpaid and; the drawn of such cheque fails to make payment of the said amount within fifteen days of receipt of such notice.

12. The Apex Court in case of Krishna Janardhan Bhat vs. Dattatraya G. Hegde , reported in 2008 (4) SCC 54 has observed that complaint under Section must contain following ingredients : (i) that there is a legally enforceable debt;

(ii) that the cheque was drawn from account of bank for discharge in whole or in part of any debt or other liability; (iii) thirdly cheque so issued had been returned due to insufficient funds.

13. Due to non following of the procedure within the prescribed time, the complainants' right to approach the Court to prosecute the drawer of the cheque gets snatched . Therefore, the date of dishonor of the cheque is the date when the offence is said to have been committed as held by the Apex Court, only the right of prosecution in relation to such offence is postponed by virtue of proviso.

14. Section 143A was introduced in the Act with effect from 01.09.2018 according to which the Court trying an offence under Section 138 the NI Act may order the drawer of the cheque to pay the interim compensation to the complainant in a summary trial or a summons case where he pleads not guilty and in any other case, upon framing of charge. The interim compensation shall Signature Not Verified Signed by: SREEVIDYA Signing time: 19-02- 2025 16:06:33 NEUTRAL CITATION NO. 2025:MPHC-IND:4411

-8- MCRC-39012-2024 not exceed 20% of the amount of the cheque. The power under Section 143A is liable to be invoked by a Court trying an offence under Section 138 . But as held by the Apex Court in catena of cases that the provisions of Section 143A is prospective in nature and applies to cases where the offence is said to have been committed after introduction/insertion of Section 143A of the Act 1881 (i.e. after 01.09.2018). But it does not mean that the provision can be invoked in a complaint filed after 01.09.2018 wherein the offence is said to have been committed prior to 01.09.2018. Therefore, the order dated 27.08.2024 is unsustainable.

15. Accordingly, the order impugned dated 27.08.2024 passed by the III Additional Sessions Judge, Indore in CRR No. 34/2024 is hereby quashed. Order dated 23.11.2023 passed by the JMFC is restored.

With the aforesaid direction, M.Cr.C. stands allowed and disposed of.

(VIVEK RUSIA) JUDGE vidya Signature Not Verified Signed by: SREEVIDYA Signing time: 19-02- 2025 16:06:33