New Delhi, May 8 (IANS) The Supreme Court Tuesday issued notice to the central government on a plea challenging the constitutional validity of a law which leaves no option to a magistrate but to send a person to jail if he is unable to pay as his cheque bounces.
Petitioner, lawyer Yeshwanath Shenoy contended in his public interest litigation (PIL) that the apex court has held that even the law has to pass the test of reasonableness and the Section 138 of the Negotiable Instruments Act, 1881, has “miserably failed to pass the test of reasonableness” and violated Article 14 and 21 of the constitution.
A bench of Justice R.M. Lodha, Justice H.L. Gokhale and Justice Ranjan Gogoi issued the notice after Shenoy told the court that Section 138 does not guarantee “liberty to an ‘honest drawer’ of a cheque who is subsequently hit by a fate of destiny making them unable to pay the debts”.
He has sought the release of all the people who are under going incarceration after being convicted under the law and the court holding the provision to be violative of Article 14 and 21 of the Constitution.
Shenoy, who practices in Bombay High Court, told the apex court that distinction has to be made between the people who are willing to pay but are unable to pay and those who are unwilling to pay.
He said that although a poor farmer from Satara has to suffer all ignominy for his inability to pay the loan he had taken for his tractors but others who borrow thousand of crores of rupees and don’t pay taxes and airport authority charges and who have properties in different countries, cozily watch cricket matches and remain untouched.
He told the court that the apex court has dealt with this issue a number of times but did not go into its constitutionality.
Shenoy told the court that the Section 138 tied the hands of the magistrate as he has no option but to send a person to three months imprisonment in the event cheque issued by him bounces.
He said that legislature could not enact a law that tied the hands of the judiciary without leaving it with any option or discretion. The court was told that law could not be devoid of mercy.
At this Justice Lodha said: “It is not tying the hands of the judiciary. It is the scheme of the things.”
The court further said: “These are commercial transactions. You are afforded a reasonable opportunity before decision was taken.”
However, Shenoy said that he was “making a distinction between inability to pay and unwillingness to pay”.
As Shenoy cited some the judgments of the high courts, Justice Lodha said that one of the judgments was from him and asked the PIL petitioner “you convince me that I was wrong” in reaching the decision that was arrived at.
Shenoy said that a lot has happened since then.
The notice to the central government is returnable in ten weeks.