www.casemine.

com

2000 ALLMR CRI 1608 . 2001 BOMLR 2 99 . 2001 MHLJ 2 94 . 2001 BOMCR SUPP 2 446 . 2000 SCC

ONLINE BOM 426 . 2001 MAH LJ 2 94 . 2001 SUPP BOM CR 2 446 .

Shirish Suresh Welling v. Smt. Sangeeta Avinash Marathe And Others

Bombay High Court (Jul 5, 2000)

CASE NO.
W.P No. 744 of 2000

ADVOCATES

Sakhardande with Prabhavalkar

V.M Kanade

For Union: H.V Mehta

For State: P. Janardhan, Addl. Advocate General with Ms. Usha Kejariwal, A.P.P

JUDGES

T.K Chandrashekhara Das, J.

Summary

1. Does not stem from the proceedings under section 395 of Criminal Procedure Code but it was a matter

where the High Court was approached under Article 226 of the Constitution to declare that section 138 is

unconstitutional.

2. Constitutionally, subordinate Courts and Tribunals are treated differently, the observations by the

Supreme Court in L. Chandra Kumar's case cannot be applied to the subordinate Courts.

3. It is a matter not by merely raising that question by party to the proceeding.

4. To the petitioner for the non payment of a promissory note, it does not entail a criminal prosecution

whereas a dishonouring of a cheque entail the prosecution.

Printed by licensee : Dushyant Mudgil Page 1 of 7

6. The classifications sought to be made by the petitioner before the Magistrate or before this Court, are

quite unscientific, unreal, to say the least artificial.

7. The classifying the cheque, to treat differently, is made to bring out the object to be achieved.

8. The learned Magistrate has correctly found that he has no power to refer the matter to the High Court

as he is not satisfied that section 138 is violative of Article 14 of the Constitution of India.

9. Not only that the discrimination is made out but also it has not been demonstrated so before the

Magistrate's Court in order to invoke the Magistrate his power to refer the matter to the High Court under

section 395, Criminal Procedure Code.

JUDGMENT

1. This writ petition is filed challenging the order passed by the learned Magistrate, First Class, Link Court,

Pune, which was confirmed by the judgment of the 7th Additional Sessions Judge, Pune in Criminal

Revision Application No. 581/1999.

2. The Complaint was filed against the petitioner by Smt. Sangeeta Avinash Marathe under section 138 of

the Negotiable Instruments Act, for having dishonoured the cheque issued by the petitioner in the name of

Mrs. Sangeeta Avinash Marathe. While that complaint was pending, an application was made by the

petitioner under section 395 of Criminal Procedure Code requesting the Magistrate to refer the matter to

the High Court as section 138 of the n.i act is violative of Article 14 of the Constitution of India. The

learned Magistrate after hearing the parties, has come to the conclusion that the section cannot be said to

be invalid or unconstitutional as offending Article 14 of the Constitution of India, and therefore it need not

be referred to the High Court under section 395 of Criminal Procedure Code and the application was

rejected by the Magistrate. Against the said order a Revision Application was filed. In Revision also the

learned Sessions Judge has gone into the aspect of the constitutional validity of section 138 and found

that no interference is called for in the order passed by the Magistrate. It is in this circumstance that the

petitioner approached this Court by way of this writ petition.

3. The learned counsel for the petitioner Mr. Sakhardande has contended that the Magistrate was wrong

Printed by licensee : Dushyant Mudgil Page 2 of 7

of Article 14 of the Constitution of India and he submits that the refusal to refer the matter to the High

Court by the Magistrate under section 395 of Criminal Procedure Code, is illegal because when a

question of constitutional validity of section is raised before the Magistrate, he has under the obligation to

refer the matter to the High Court.

4. To substantiate his contention he also referred to the decision of Allahabad High Court reported in AIR

1999 Allahabad page 21 in the case of Smt. Ramawati v. Union of India, and (1997) 3 SCC 261 : AIR

1997 SC 1125 in the case of L. Chandra Kumar v. Union of India. I find that these two decisions will not

help to bring home the contentions raised by the counsel for the petitioner. In Allahabad High Court's

decision case does not stem from the proceedings under section 395 of Criminal Procedure Code but it

was a matter where the High Court was approached under Article 226 of the Constitution to declare that

section 138 is unconstitutional. The nature of the discrimination to attract Article 14 have been stated by

that Court in paragraph 4 of that judgment.

5. The grounds on which the prayer for declaring the provisions ultra vires were that the N.I Act thought of

at least three types of negotiable instruments, namely, promissory note, bill of exchange and cheque, and

the law had made punishable a failure of encashment upon cheque only and not upon the other two types

of negotiable instruments. It was further stated that the liability to repay a loan is out and out a civil one

and for that no criminal liability could have been attached, even by making a legislation.

6. The aforesaid contention has been met by the Allahabad High Court in its observation as contended in

paragraph 12 which reads as follows.

A cheque and a promissory note may not be equated as a promissory note simply creates a liability and

by issuing a cheque, the drawer desires that certain payment is to be made in favour of the holder.

Section 138 does not punish every dishonour of a cheque. It must be a cheque for discharge in whole or

any part any debt or other liability and the cheque is to be drawn upon a bank. This provision had to be

introduced as in business transactions issuance of cheque to discharge a debt or other liability is a

common transaction and it has also been found that to avoid immediate liability, people to take recourse to

issuance of cheque which bounces on presentation at the bank. The law may not therefore be deemed

discriminatory as a promissory note basically differ from a cheque and only a cheque out of possible bills

of exchange have been chosen to come under the purview of section 138. This law has been

Printed by licensee : Dushyant Mudgil Page 3 of 7

7. As I indicated earlier, since the entire gamut of the case was to examine the validity of the action of the

Magistrate, who refused to refer the matter under section 395 Criminal Procedure Code, the case cited by

the learned counsel for the petitioner of Allahabad High Court will not be of any help. As rightly pointed out

by the Additional Advocate General Mr. Janardhan, even in that case the Allahabad High Court has not

held that section is unconstitutional.

8. The learned counsel for the petitioner have strenuously relied upon the observation of the Supreme

Court in decision cited above. In fact in Chandra Kumar's case the Supreme Court has examined the

scope of the power and duty of the Central Administrative Tribunal which is an authority constituted under

Article 323(A) and 323(B) of the Constitution of India which comprised in part XIV-A which deals with

Tribunals. The main question arose in that case is that what are the power of a Tribunal under the

aforesaid articles to declare a statute invalid on the basis of the statute as a whole or in part is violate the

fundamental rights. The learned counsel has also relied upon the observation of the Supreme Court in

paragraph 93 which reads thus:

Before moving on to other aspects, we may summarise our conclusions of the jurisdictional powers of

these Tribunals. The Tribunals are competent to hear matters where the vires of statutory provisions are

questioned. However, in discharging this duty they cannot act as substitutes for the High Courts and the

Supreme Court which have, under our constitutional set up, been specifically entrusted with such an

obligation. Their function in this respect is only supplementary and all such decisions of the Tribunals will

be subject to scrutiny before a Division Bench of the respective High Courts. The Tribunals will

consequently also have the power to test the vires of subordinate legislations and rules.

9. Relying on these observations the learned counsel for the petitioner has argued that the Magistrate by

his own should have taken the task of examining the constitutional validity of section 138 of n.i act in

exercise of his power under section 395 of the Criminal Procedure Code. The attempt on the part of

counsel to compare the lower judiciary like the Magistrate's Court and District Court as that of a Tribunal,

which is constituted under 323(A) and 323(B) of Constitution of India is totally irrelevant and out of place.

The subordinate judiciary and the Tribunal are in the nature of its function and conduct are totally different.

Even in the setting of the Constitution subordinate Courts and Tribunals are treated separately and

distinctly. Chapter IV of the Constitution deals with subordinate Court and articles 233 of 237 deals with

Printed by licensee : Dushyant Mudgil Page 4 of 7

subordinate Courts and Tribunals are treated differently, the observations by the Supreme Court in L.

Chandra Kumar's case cannot be applied to the subordinate Courts.

10. Even if, we assume that the Magistrate's Court and the Tribunals are on the same footing the

observations made by the Supreme Court cannot be applicable in the Magistrate's Court, particularly

when the power of the Magistrate has been circumscribed under section 395 of Criminal Procedure Code

which reads as follows:

Where any Court is satisfied that a case pending before it involves a question as to the validity of any Act,

Ordinance or Regulation, or of any provision contained in an Act, Ordinance or Regulation, the

determination of which is necessary for the disposal of the case, and is of opinion that such Act,

Ordinance, Regulation or Provision is invalid or inoperative, but has not been so declared by the High

Court to which that Court is subordinate or by the Supreme Court the Court shall state a case setting out

its opinion and the reasons therefor, and refer the same for the decision of the High Court.

11. When the function of the Magistrate has been limited and circumscribed, we need not go into the

general observations made by the Supreme Court in Chandra Kumar's case. The main purpose of section

395 is to obviate any difficulties which has arisen at the time of trial or hearing of a case before the

Magistrate or District Court with regard to the constitutional validity of a provision and entire disposal of

the case is depended upon the determination of such constitutional validity then only the Magistrate can

refer the matter to the High Court. Moreover in such cases the Magistrate himself must arrive at a

subjective satisfaction that a particular case involve the testing of the vires of any Act or regulation, then

only he can refer the matter. When he is satisfied that it is invalid, he must refer the matter to the High

Court. This power of the Magistrate cannot be invoked by an application by the accused. The section itself

indicate that a case pending before him involves the question and the determination of the question is

necessary for disposal of the case, if it is of the opinion that such Act is invalid or inoperative. First of all

the Magistrate must satisfy himself that such a question has arisen in the case. Therefore, it is a matter

not by merely raising that question by party to the proceeding. If the learned counsel's argument is

accepted we are driven to a ridiculous position that any accused can make an application before the

Magistrate alleging that particular Act under which he is prosecuted is invalid and scuttle the trial. That is

not the intent and purport of the section. The intention of the legislature is to obviate the difficulty of the

Printed by licensee : Dushyant Mudgil Page 5 of 7

that the Act is invalid, he can invoke section 395 but it cannot be so readily invoked by merely

demonstrating that the particular section is invalid.

12. Secondly, the entire allegation of the petitioner is that two negotiable instruments vis-a-vis promissory

note and cheque are treated differently. Accordingly to the petitioner for the non payment of a promissory

note, it does not entail a criminal prosecution whereas a dishonouring of a cheque entail the prosecution.

In other words, if a default of payment under these two instruments results in prosecution the petitioner

will not have any grievance. His only grievance is that, being both are Negotiable Instruments Act the

failure to pay one case is entail to criminal prosecution and the other is not. I am afraid whether such an

approach is correct approach by a person who assail the particular section is violative of Article 14 of the

Constitution of India. Article 14 of the Constitution of India speaks about discrimination. The State shall

not deny to any person the equality before the law, which means every citizen is entitled to equal

treatment under the law and equal protection of law. Then the Article 14 does speak about the

fundamental right of a citizen and it does not speak about the fundamental right of the accused. The

accused cannot assail the provision of the Act which he is prosecuted, pointing out that unless the

promissory note is also brought in similar line or that of cheque, his prosecution is wrong and that is not

how a statute has to be assailed on the ground of discrimination.

13. The manner in which the petitioner try to classify both Instruments is only imaginary. Even though N.I

Act deals with different Negotiable Instrument that are relevant in the day to day commercial transaction of

the people, in fact those Negotiable Instrument are not alike. The only commonality that does exist among

these instruments, namely, promissory note, bill of exchange, cheque or bundles is in their negotiability.

But in their operation and function they act differently and these instruments are created under different

commercial context. Therefore except the negotiability a cheque cannot be treated as par with promissory

note. Therefore the classifications sought to be made by the petitioner before the Magistrate or before this

Court, are quite unscientific, unreal, to say the least artificial. As rightly pointed out by Allahabad High

Court, a promissory note cannot be treated as equally as that a cheque and in other words a promissory

note cannot be said to be as same as a cheque. Promissory note in fact creates a liability; but in the case

of a cheque particularly under section 138 it discharges a liability. So one is creating a liability and another

is discharging a liability and these two instruments therefore cannot be equated with each other. This

Printed by licensee : Dushyant Mudgil Page 6 of 7

14. Moreover the preamble of the amended Act, by which section 138 was introduced is to bring in

credibility in the commercial activities in India which largely depend upon the transactions through

cheques. Therefore the classifying the cheque, to treat differently, is made to bring out the object to be

achieved. Legislature has thought in its wisdom to bring out above objects namely, dishonouring of

cheque should be met with more onerous consequences to the defaulters apart from the civil remedy

available against the defaulters. The petitioner has therefore failed in his endeavour to show that section

138 of the n.i act is violative of Article 14 of the Constitution of India. The learned Magistrate therefore has

correctly found that he has no power to refer the matter to the High Court as he is not satisfied that

section 138 is violative of Article 14 of the Constitution of India. Therefore not only that the discrimination

is made out but also it has not been demonstrated so before the Magistrate's Court in order to invoke the

Magistrate his power to refer the matter to the High Court under section 395, Criminal Procedure Code. In

view of this, the Magistrate as well as the Sessions Court has rightly rejected the application of the

petitioner to refer the matter to the High Court. Under section 395, Criminal Procedure Code. In the light of

the foregoing discussion, I find no ground to interfere in the matter.

15. In the result the petition fails and it is dismissed. There is no order as to costs.

16. P.A to issue ordinary copy of this order authenticated by the Sheristedar of this Court.

Petition dismissed.