M.S.R.B. Cashew Industries Vs. Karnataka State Small Scale Industries Development Corporation Limited and ors. - Court Judgment

Excerpt:
- [ k.n. keshavanarayana, j.] negotiable instruments act, 1881 - section 138 - offence under - complaint - judgment of conviction -appealed against to the court of sessions and subsequently made over to the presiding officer, fast track court-v, mysore - setting aside of judgment of conviction -appealed there against before the high court -interpretation made by the learned fast track judge with regard to the amendment brought to clause (b) of proviso to section 138 of the act is in the nature substitution and the amendment is deemed to have been brought into force from the inception of the act - consideration of - held, the object behind issuance of notice under clause (b) proviso to section 138 is to give intimation to the drawer of the cheque about dishonoring of the cheque and to give him an opportunity to pay the money covered under the cheque and thereby to avoid the criminal prosecution being launched against him. therefore, issuance of notice as required by clause (b) is mandatory. in this background, it is necessary to find out as to whether the amendment brought to clause (b) of the proviso to section 138 of the act with effect from 06.02.2003 by act no.55/2002 has retrospective effect. by this amendment brought into force from 06.02.2003, the requirement of issuing notice on the part of the drawer of the cheque within 15 days was substituted by 30 days. - no doubt, the words '15 days' occurring in clause (b) has been substituted by 30 days by the amendment. the question is as to whether by virtue of this amendment, the complainant could have issued a notice on 08.02.2003 though he had lost his right to issue such notice of demand on or after 29.01.2003. - there is nothing to indicate that the amendment brought to clause (b) of proviso to section 138 of the act has retrospective effect. merely because the said amendment was in the nature of substitution, it cannot have a retrospective effect, morose, when it relates to initiation of penal action. therefore, the high court is of the opinion that the amendment brought to clause (b) of the proviso to section 138 cannot be deemed to be in force from the inception and the amendment brought into effect subsequently cannot create a fresh cause-of-action for the complainant to issue notice and lodge a complaint based on such notice. - further held, the complainant received information from her banker on 13.01.2003 about the return of the cheque, cause-of-action for issue of notice began to run. as per the law that existed on that day, she was required to issue notice, within 15 days, which expired on 28.01.2003. on account of the inaction on the part of the complainant in not issuing notice of demand within 15 days from the date of the receipt of the information from her banker about the return of the cheque, she had lost her right to file a complaint for an offence under section 138 of the act, as there was no demand in writing made by her to the drawer of the cheque as required by law. - therefore, the complainant had no right to present a complaint. the amendment brought into force from 06.02.2003 did not give her a right to issue a notice of demand in respect of dishonoring of the cheque on 09.01.2003, which was intimated to her on 13.01.2003. therefore, the complaint lodged was defective and the learned magistrate could not have taken cognizance of the offence alleged. -judgment of acquittal passed by the fast track court is justified - negotiable instruments act, 1881 (act no. 55/2002 with effect from 6-2-2003) -clause (b) of proviso to section 138 -amendment by way of substitution - statutory provision -retrospective effect - discussed. (paras 13,14,15,16,20,21,22)order ajit j. gunjal, j.1. petitioner and respondent 5 are rival claimants in respect of two industrial sheds. matter arises in the following manner:both the petitioner and respondent 5 wanted to establish a cashew nut processing unit at kirumanjeshwara, kundapura taluk. both the petitioner as well as respondent 5 made applications for allotment of industrial plots. the matter was placed before the committee headed by respondent 6. respondent 6 ultimately found that since there are two claims for the 2 sheds for establishing an identical unit, was of the view, that the said 2 sheds shall be auctioned inter se between the petitioner and the respondent 5. but however, before the said plan could be executed the 1st respondent has allotted the 2 sheds in favour of the respondent 5 and the said allotment is questioned in this writ petition.2. incidentally, it is noticed that the allotment is of the year 2008 and respondent 5 has already established a unit in the 2 sheds. this court also did not grant an interim order, which would necessarily mean that the 5th respondent is operating the unit.3. sri vigneshwara s. shastri, learned counsel appearing for the petitioner vehemently submits that in all fairness an auction should have been held in respect of the 2 sheds. he submits that the claim of the petitioner is in respect of 2 sheds. petitioner would have been happy at least if one shed was allotted in his favour for establishing the unit. in the alternate, he further submits that the 1st respondent be directed to allot 2 sheds to the petitioner so that he can establish a cashew nut processing unit inasmuch as the petitioner has an expertise in the said field.4. sri a. anand shetty, learned counsel appearing for respondent 5 submits that pursuant to the allotment, respondent 5 has deposited the amount and has already started functioning in the two sheds. to support his claim he has produced photographs of the two sheds, which clearly show that the unit has already been established.5. sri ashok r. kalyan shetty, learned counsel appearing for respondents 1, 2 and 4 submits that indeed, after the allotment of 2 sheds in favour of respondent 5, an offer was made to the petitioner indicating that 2 sheds would be allotted to the petitioner at koteshpalya and the petitioner did not avail the said offer.6. i have perused the papers. apparently it is too late in the day for the petitioner to contend that the said 2 sheds in question be allotted to him inasmuch as much water has flown under the bridge. respondent 5 has already established his unit and his been functioning there since the last 2 years. at this stage it is not possible to examine the matter further and direct eviction of respondent 5 and have it allotted to the petitioner. indeed, it is to be noticed that the petitioner was offered an alternative industrial shed in a different locality but the said offer was not accepted by the petitioner. but however, wisdom has dawned on petitioner and now he is willing to accept an alternative industrial shed in the small scale industrial area which is called 'vishwa'. hence i am of the view, that if the petitioner makes an application for allotment of 2 industrial sheds in the same area or in a nearby locality the corporation shall consider the same, having regard to the offer made by them earlier to allot alternative sheds. hence the following:

Judgment:
ORDER

Ajit J. Gunjal, J.

1. Petitioner and respondent 5 are rival claimants in respect of two industrial sheds. Matter arises in the following manner:

Both the petitioner and respondent 5 wanted to establish a Cashew Nut Processing Unit at Kirumanjeshwara, Kundapura Taluk. Both the petitioner as well as respondent 5 made applications for allotment of industrial plots. The matter was placed before the Committee headed by respondent 6. Respondent 6 ultimately found that since there are two claims for the 2 sheds for establishing an identical unit, was of the view, that the said 2 sheds shall be auctioned inter se between the petitioner and the respondent 5. But however, before the said plan could be executed the 1st respondent has allotted the 2 sheds in favour of the respondent 5 and the said allotment is questioned in this writ petition.2. Incidentally, it is noticed that the allotment is of the year 2008 and respondent 5 has already established a unit in the 2 sheds. This Court also did not grant an interim order, which would necessarily mean that the 5th respondent is operating the unit.

3. Sri Vigneshwara S. Shastri, learned Counsel appearing for the petitioner vehemently submits that in all fairness an auction should have been held in respect of the 2 sheds. He submits that the claim of the petitioner is in respect of 2 sheds. Petitioner would have been happy at least if one shed was allotted in his favour for establishing the unit. In the alternate, he further submits that the 1st respondent be directed to allot 2 sheds to the petitioner so that he can establish a Cashew Nut Processing Unit inasmuch as the petitioner has an expertise in the said field.

4. Sri A. Anand Shetty, learned Counsel appearing for respondent 5 submits that pursuant to the allotment, respondent 5 has deposited the amount and has already started functioning in the two sheds. To support his claim he has produced photographs of the two sheds, which clearly show that the unit has already been established.

5. Sri Ashok R. Kalyan Shetty, learned Counsel appearing for respondents 1, 2 and 4 submits that indeed, after the allotment of 2 sheds in favour of respondent 5, an offer was made to the petitioner indicating that 2 sheds would be allotted to the petitioner at Koteshpalya and the petitioner did not avail the said offer.

6. I have perused the papers. Apparently it is too late in the day for the petitioner to contend that the said 2 sheds in question be allotted to him inasmuch as much water has flown under the bridge. Respondent 5 has already established his unit and his been functioning there since the last 2 years. At this stage it is not possible to examine the matter further and direct eviction of respondent 5 and have it allotted to the petitioner. Indeed, it is to be noticed that the petitioner was offered an alternative industrial shed in a different locality but the said offer was not accepted by the petitioner. But however, wisdom has dawned on petitioner and now he is willing to accept an alternative industrial shed in the Small Scale Industrial Area which is called 'Vishwa'. Hence I am of the view, that if the petitioner makes an application for allotment of 2 industrial sheds in the same area or in a nearby locality the Corporation shall consider the same, having regard to the offer made by them earlier to allot alternative sheds. Hence the following: