Case Note & Summary
The applicant, Mohamed Ali Mulla, was convicted under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of a cheque of Rs. 5,00,000 issued to respondent no. 2, Raison Almeida. The cheque was dishonoured, and after a legal notice dated 10.9.01 was served on the accused, he failed to pay, leading to a complaint on 18.10.01. The Judicial Magistrate convicted and sentenced him, which was confirmed by the Additional Sessions Judge on 6.5.05. In revision, the accused raised three submissions: (1) that Sections 138-142 were not on the statute book because the amending Act of 1988 was repealed by the Repealing and Amending Act, 2001; (2) that the Magistrate could not impose imprisonment in default of payment of compensation of Rs. 4,50,000; and (3) that the complainant failed to prove proper service of notice. The High Court rejected all submissions. On the first point, the Court held that the repeal of the amending Act does not affect the provisions because they were re-enacted in the principal Act, relying on Section 6A of the General Clauses Act, 1897 and Section 4 of the Repealing and Amending Act, 2001, as decided by a Division Bench. On the second point, the Court held that imprisonment in default of compensation is permissible under Section 357(3) CrPC. On the third point, the Court held that service of notice by UPC is sufficient proof, and the complainant need not prove actual receipt if sent to the correct address. The revision was dismissed, and the conviction and sentence were upheld.
Headnote
A) Negotiable Instruments Act - Dishonour of Cheque - Section 138 - Repeal of Amending Act - The Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 which introduced Sections 138 to 142 was repealed by the Repealing and Amending Act, 2001, but the provisions continue in force by virtue of Section 6A of the General Clauses Act, 1897 and Section 4 of the Repealing and Amending Act, 2001, as they were re-enacted in the principal Act. (Paras 5-6) B) Criminal Procedure Code - Imprisonment in default of compensation - Section 357(3) CrPC - The learned Judicial Magistrate can impose imprisonment in default of payment of compensation under Section 357(3) CrPC, and such default sentence is not illegal. (Para 7) C) Negotiable Instruments Act - Notice of dishonour - Section 138 proviso (b) - Service of notice by UPC (Under Postal Certificate) is sufficient proof of service, and the complainant need not prove actual receipt by the accused if the notice was sent to the correct address. (Para 8)
Issue of Consideration
Whether the conviction under Section 138 of the Negotiable Instruments Act, 1881 is sustainable despite the repeal of the amending Act that introduced it, whether imprisonment in default of payment of compensation can be imposed, and whether the complainant proved proper service of notice.
Final Decision
The revision application is dismissed. The conviction and sentence of the applicant under Section 138 of the Negotiable Instruments Act, 1881 are upheld.
Law Points
- Repeal of amending Act does not affect substantive provisions if re-enacted
- Section 6A General Clauses Act
- 1897
- Section 4 Repealing and Amending Act
- 2001
- Imprisonment in default of compensation is permissible under Section 357(3) CrPC
- Service of notice by UPC is sufficient proof
