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I. Introduction

A.    Background

The Negotiable Instruments Act, 1881[1] (‘the Act’) was enacted with a view to establish laws relating to promissory notes, bills of exchange and cheques, which at the time were novel financial tools in India. Although promissory notes and bills of exchange have become outdated, today, cheques continue to be the preferred mode for carrying out banking transactions and as such have become essential to the functioning of the economic superstructure of the capitalist world.[2] Chapter XVII of the Act comprises of sections 138 to 142. These are penal provisions, which were inserted in the Act by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988,[3] in order to inculcate faith in the credibility of transacting business on negotiable instruments and in the efficacy of banking operations.[4]

B. Understanding the interpretations provided by the Courts

In the case of Modi Cements v. Kuchil Kumar Nandi[5] the court had emphasized on the need for enacting a legislation so as to incorporate the concept of strict liability with regard to the financial instrument used as a means of credit in the business of trade and commerce by providing due sanctity to the instrument so used in the day-to-day business transactions and therefore as a result of the same the Parliament had come up with the amendment to criminalize the said section and brought sections 138- 142 to catering the same. Further, in the case of Dalmia Cement v. M/S Galaxy Trades and Agencies Ltd. & Ors.,[6] the court held that section 138 of NI Act was never enacted with the purpose of protecting unscrupulous drawers who never intended to honor the cheques issued by them but for the purpose of punishing them for their unscrupulous actions and in fact to protect honest men who so dealt with them in a commercial capacity. It can be further said that this section only targets those unscrupulous drawers and not honest persons and therefore there doesn’t exist a need to decriminalize it. The fact that the credibility of cheques were degraded grossly in the past couple of decades was one of the foremost reasons behind the legislative trying to re-establish the credibility and reliability to cheques as a principal form of payment made as an alternative to cash transactions[7] by enacting section 138 which creates a criminal liability on the drawer of the said cheque.[8]

Section 138 of the Act creates a statutory offence relating to dishonour of cheques. If a cheque is dishonoured for reason of insufficiency of funds in the drawer’s account or if it exceeds the amount arranged to be paid from that account, the drawer is liable to be punished with imprisonment for a term which may extend to two years or with fine, which may extend to twice the amount of the cheque, or with both.[9] Section 141 of the Act deals with offences committed by a company.[10] In the case of such an offence, every person who, at the time when the offence was committed, was in charge of and was responsible to the company for the conduct of the business of the company, as well as the company itself, are deemed to be guilty of the offence and can be prosecuted and punished. The Explanation to section 141 specifies that for the purposes of the section, a company means “any body corporate and includes a firm or other association of individuals”.[11] In this context, it becomes important to analyse the applicability

II. Applicability of the provisions of the Act on HUF and Trusts

Just like any other individual, body corporate, firm or company, a Hindu Undivided Family (‘HUF’) and a trust make use of negotiable instruments for the purpose of transacting their day-to-day business. However, they have not been specifically brought within the purview of Chapter XVII. On a joint reading of sections 138 and 141 of the Act, it appears that an HUF or trust could be prosecuted under section 141 of the Act only if they were considered to be an ‘association of individuals’ and therefore, a ‘company’ as stipulated in the Explanation thereunder.

A.    Analysing the regulatory frameworks for HUF and Trusts

In India, HUFs are governed by uncodified Hindu law whereas trusts are governed by codified law. While private trusts are governed by a central enactment, the Indian Trusts Act, 1882, public trusts are governed by the respective state enactments. However, the law pertaining to HUFs and trusts are silent as regards their treatment as an ‘association of individuals’.

In 2008, a division bench of the Supreme Court of India passed a judgment in the case of Ramanlal Bhailal Patel & Ors. v. State of Gujarat[12] (‘Ramanlal’) wherein it held that a mere combination of persons or the mere coming together of persons, with a common purpose but without any intention to have a joint venture or to carry on some common activity would not, by itself, convert the two or more persons into a ‘body of individuals’ or an ‘association of persons’. In this judgment the Apex Court emphasized that the co-existence of the volition of the parties and their common object or purpose were the two main defining characteristics of such a body/association. Over the years, the state judiciaries have passed conflicting judgments as regards the treatment of an HUF and a trust as an ‘association of individuals’ and consequently, their treatment under sections 138 and 141 of the Act have also differed.

In 2008, a single judge of the Bombay High Court (Aurangabad Bench) delivered a judgment in Dadasaheb Rawal Co-operative Bank of Dondaicha Ltd. v. Ramesh s/o Jawrilal Jain & Ors.,[13] opined that the expression ‘association of individuals’ used in the Explanation to section 141 would include an HUF, of which the family business was a joint concern and would also include entities such as a club or trust. However, in 2012, a single judge of the Madras High Court dissented from the view expressed therein.

In Abraham Memorial Educational Trust v. C. Suresh Babu,[14] (‘Abraham’) Nagamuthu J. opined that in the case of an HUF, the essential requirements of an ‘association of persons’, as stipulated by the Apex Court in Ramanlal were absent inasmuch as an individual does not become a member of an HUF of his or her own volition but by birth. On the other hand, as regards a trust, Nagamuthu J. observed that those essential requirements did in fact co-exist. The reasoning provided for the same was that in every trust there would be at least one common purpose, which would be the obligation imposed on it and the trustees that would come together to fulfill that purpose, whether by election or nomination, would do so of their own will and volition.[15]

The difficulty faced by the Madras High Court in this case lay in the fact that a trust consisting of a single trustee could not be considered to be an ‘association’ or ‘combination’ of individuals. As a result, a trust consisting of more than one trustee would fall within the ambit of ‘company’ for the purposes of section 141 but a trust with a single trustee would not. Nagamuthu J. observed that the aforesaid treatment of trusts would lead to an absurdity, which ought to have been avoided in order to give force and life to sections 138 and 141 of the Act. In stating so, Nagamuthu J. concluded that a trust, private or public, charitable or otherwise, having either one trustee or more than on trustee would be a ‘company’ for the purposes of section 141 and would therefore, be liable under sections 138 and 141 of the Act. A special leave petition was filed against the judgment in this case, but a division bench of the Supreme Court dismissed the same in limine and without a speaking or reasoned order.[16]

The views expressed in Abraham were relied upon and re-affirmed in 2017, in two cases before Pardiwala J. of the Gujarat High Court.[17] In Shah Rajendrabhai Jayantilal v. D. Pranjivandas & Sons & Ors.,[18] Pardiwala J. surmised that an HUF was not a legal entity, separate and distinct from the members constituting it and therefore, could not be considered to be a ‘company’ under section 141 of the Act. A few months later, in Hakkimuddin Taherbhai Shakor (Trustee) & Ors. v. State of Gujarat & Ors.,[19] Pardiwala J. applied the same principles as laid down by Nagamuthu J. in Abraham and held that a trust, private or public, charitable or otherwise, having either one trustee or more than on trustee would be considered to be an ‘association of individuals’ and therefore, a ‘company’ for the purposes of section 34 of the Drugs and Cosmetics Act, 1940, dealing with offences committed by companies. In the case of Shah Nitinkumar Dhirajlal vs Patel Mahendrakumar,[20] the Gujarat High Court held that that only a Hindu Undivided Family (HUF) is not an ‘association of individuals’ under Section 141 of the Negotiable Instruments Act (NI Act). Hence, only a ‘Karta’ of a Hindu Undivided Family can be prosecuted for the dishonour of a cheque under Section 138 of the NI Act.

In 2019, a contrary view was taken by a single judge of the Kerala High Court in Shibhu K. P. & Ors. v. State of Kerala & Ors.[21] While scrutinizing the judgment in Ramanlal and referring to the provisions of the Indian Trusts Act, 1882, Kumar J. opined that so inasmuch as a trust does not receive any benefit from the trust property and the benefit is received by the beneficiaries individually or by the beneficiaries together with the author of the trust, it cannot be said that trustees are persons who come together for a common action or to achieve some common benefit. In light of this, Kumar J. concluded that a trust was not an ‘association of persons’ or a ‘body of individuals’ and therefore, was not a ‘company’ under section 141 of the Act. It is, however, pertinent to note that the decision in this case does not show that the attention of the Court was invited to the earlier decisions of the Bombay High Court, Gujarat High Court and Madras High Court mentioned hereinabove.

From the discussion above, it is clear that as far as the prosecution of an HUF or a trust under sections 138 and 141 of the Act is concerned, the state judiciaries have differing views and opinions. Although the matter was brought before the Supreme Court by way of a special leave petition against the judgment in Abraham, it was dismissed without a speaking order. In India, it is settled law that in the absence of a speaking or reasoned order, the simpliciter dismissal of a special leave petition does not operate as a declaration of any law and the doctrine of stare decisis as envisaged under article 141 of the Constitution of India is not attracted.[22]

III. The Decriminalisation of Section 138 of the NI Act

The government recently vide its notification tiled “Statement of Reason”[23] announced the proposal to amend section 138 of the NI Act. The said proposal was carried out in furtherance of the objective of easing the doing of business ranking which has been the hallmark of this governments policy coupled with other reasons like unclogging the court system and increasing the overall efficacy of the system as for a matter of fact more than 20% of litigation the court faces pertain to cheque bounce under section 138 of the NI Act.[24] Section 138 of NI Act has been given a criminal overtone despite it being a civil wrong to deter possible defaulters from defaulting as credit is given on trust and good faith and a single act of dishonestly is bound to have ripple effects on the economy as a whole. The government’s proposal has caused widespread debate as to whether the section should be decriminalized or whether it should be left as it is.

In order to better understand the arguments pertaining to the debate of decriminalisation of section 138 of the NI Act, it is pertinent to look into a few things. In the landmark case of Kusum Ingots and Alloys Ltd. v Pennar Peterson Securities Ltd.[25] the Court held that the necessary pre-conditions should be met to constitute an offense under section 138 of NI Act. Section 138 of Negotiable Instruments Act 1881 states and explains Dishonour of cheque for insufficiency, etc., of funds in the account. It defines as follows:

Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for [a term which may be extended to two years’], or with fine which may extend to twice the amount of the cheque, or with both.[26]

A.    Is this policy one step forward and two steps backwards?

The primary objective of giving compensatory relief to the payee of the cheque is essentially civil in nature. Section 138 of the Act, thus, seeks to provide a civil remedy through the criminal justice apparatus. The Supreme Court has on several instances recognised that cheque dishonour cases “are really civil cases masquerading as criminal cases”.[27] Nonetheless, on the other hand, the whole objective of bringing section 138 of the NI Act was to bring efficiency and making sure of liability in transactions operating via cheques in cases of default or wrongdoings on the part of the drawer.[28] The section is against the very idea of protecting any unscrupulous drawer who do not honor their side of the bargain and impose strict liability.[29] Courts have often times opined that the main object of incorporation of this section is to recover money and criminal liability is to be only exercised when faced with a case involving wilful default.[30]

In Meters and Instruments Private Limited and Anr. v. Kanchan Mehta,[31] the Apex Court has observed the nature of offence under Section 138 primarily relates to a civil wrong, and that while criminalising of dishonour of cheques took place in the year 1988 taking into account the magnitude of economic transactions today, decriminalisation of dishonours of cheque of a small amount may also be considered, leaving it to be dealt with under civil jurisdiction. This further highlighted the importance of introducing a criminality angle by imposing two years of imprisonment on dishonour of cheques which acted as a deterrent for drawers from breaching their obligation as the being tagged as a criminal had various social implications. The criminality so added to the section subsequently thereby safeguarded the interests of the drawee against mala fide and fraudulent drawers.

It undoubtedly can be said that the fear of criminal litigation and imprisonment is the precipitating factor behind making timely payments of cheques. It is also the reason why most cases get settled in the initial stages of criminal proceedings and some even before the case is duly instituted before the court as the fear of imprisonment looms over the defaulter/ drawer of such cheques.[32] The proposed law for decriminalization of the section will remove the fear and as a consequence, there is bound to be a steep rise in the number of cases involving such defaults and the original objective of the government, that is unclogging of the court system and ease of doing business ranking will be obviously defeated. Further, cheque as a negotiable instrument will lose its well-founded value and faith in the market. Gradually the trust that was so accorded to cheques will erode and we could see a gradual decrease in the number of transactions that would be carried through the means of cheque as a negotiable instrument.[33]

Even if the section is decriminalised, the cases for dishonour would be filed under civil courts as cases of cheating under section 420 IPC and relevant provisions, which in turn would be a lengthy and costly procedure without adequate relief at the time when needed, in contrast to the summary trials presently undertaken in such cases with are comparatively less time consuming and cost-effective.[34] The government should not completely base its decision in the light of the COVID-19 situation prevailing today, but shall weigh the far-fetched repercussions of decriminalisation section 138 which prime facie appears to be in contrast to the very objective for which the proposal is made. Decriminalising section 138 of the NI Act in totality does not seems very appealing in its entirety and the government should aim at other effective alternatives to reduce the burden of courts alongside with maintaining the integrity of the instruments. The Delhi High Court in Dayawati v. Yogesh Kumar Gosin,[35] encouraged mediation to resolve cheque bounce disputes. Apparently, the cost of proceeding is far lesser when instituted by the payee under section 138 of the NI as compared to when instituted in civil courts. Upon decriminalization of the offense of cheque bounce the holders of such cheques would have to turn to civil courts for any relief, this in turn would add to the workload of civil courts as it will see an exponential rise in cheque bounce cases before it.[36]

Further in criminal proceedings, usually the holder of the cheque may demand an interim compensation of 20% of the total amount of the cheque under section 143A, decriminalization would take away this right of the holders to recover such sums, which it could have been easily obtained under the above- mentioned section in a trial court. The brunt of decriminalization will be mostly faced by poor litigants, employee belonging to the marginalized sections and they would find it extremely difficult to afford costly and time- consuming civil remedies to recover the amount that has been so due to them from the drawer of the negotiable instrument.[37]

On one hand that court has pendency of cases and decriminalizing would help in reducing the piles of cases lying in the court but on the other hand there increases a risk in the business and the credibility of the cheque system will decrease. Fear of imprisonment and litigation charges along with fine were the main factors for timely payments of the cheques. In case the punishment are removed by decriminalising section 138, definitely creditors will have to incur lot of risk.[38] It is true that section 138 has created lots of cases piled up in the court, but decriminalizing it is not the solution. The credibility of the investors would be shaken if there will be no remedy against dishonored cheques. Instead of people taking interest in the investment, other person may take advantage of it. The provisions of section 138 does not allow any person to take any unfair advantage because of the punishment. If there would be no punishment the other person would be free and can take any advantage of the situation. Decriminalizing section 138 would make the creditor more insecure. There would be a cascading effect and the complete system of negotiable instruments would turn futile.[39]

Normally a large number of criminal complaints instituted under section 138 is settled and compounded well before the first date of hearing or in the initial stages of the court proceedings due to fear of imprisonment. Therefore, it can be said that the object and purpose of the offense being criminalized is achieved for most part of cases instituted for criminal prosecution. With the decriminalization of the offense, litigants have to resort to civil courts and its remedies, often instituting a suit for recovery which are time consuming. Even in cases where courts have adjudicated the matter and judgment has been given, the process of obtaining the court decree as well its successful execution will be cumbersome and a long-drawn battle. The alternative remedy involving institution of civil proceedings for cheque bounce cases is not only costly as court fee payable for filing of criminal complaint is lesser[40] as compared to when a case is filed in civil courts but also time consuming.[41]

On one hand, it can be argued that if the complainant chooses to move only the criminal courts via Section 138 of the Act, the proceedings may not be concluded as expeditiously as required by the Act,[42] and the civil right of action may be lost in the meantime due to the limitation period expiring. This problem came to the fore in R. Vijayan v. Baby,[43] where the criminal case against the accused resulted in the Magistrate levying an inadequate amount of fine, while the limitation period for the civil action expired during the pendency of the appeal from the Magistrate’s judgment. This left the complainant with no means of recovering the cheque amount.

However, per contra, it has also been speculated and rightly so that removal of criminal liability on the commission of the said offense would exponentially increase chances of no recovery and for that matter payment of dues, in the process creating a threat to public security and justice system in the country. It was observed by the Supreme Court in the case Rajesh Laxmichand Udeshi v. Pravin Hiralal Shah[44] that the whole objective of section 138 r/w 139 was to prevent abuse of banking system to commit fraud. The above act of decriminalization will take us back several decades back rather and the progress made till now in the banking system will go in vain.[45] It also has to be understood that the dishonor of cheque by a bank leads to incomputable loss[46] both for the payee and the business environment in the nation and abroad and many businesses and its operations is affected and disturbed as a result of it, causing both irreparable loss and setback as the whole reliability of the business deal is affected both within and outside the nation.[47]

IV. Conclusion

Since the criminal liability associated with the dishonor of checks has been extinguished now, there has been constant debate of whether it has been a right step. The Indian judicial system has been facing new challenges now and again and has always tackled them with utmost precision. From one side it has been argued that the decriminalized provision would render speedy justice has been one such step that would inspire confidence and create respect for the rule of law among the society at large. The judiciary acting as the guardian of the fundamental rights of the society protects the right to free and speedy trial and thereby, civil disputes for cheque dishonor cases would help in achieving the objective.

Nonetheless, on the other hand, Section 138, if decriminalized, has the potential to withdraw the existing fear of payment, which has been so instilled due to the criminal liability imposed on the drawer of the cheque and also the provision has the capacity to encourage further non- payment of dues.[48] However, a debate that had gone under the radar was of the applicability of the provisions and the liability of HUF and a trust under sections 138 and 141 of the Act. It is very important for the government and concerned ministries to keep the trust in the banking operations of the country and the same can only be achieved when the government shows seriousness and is able to provide due mechanisms for the addressal of such disputes in a time bound manner and providing adequate punishment for the crime which has been committed maliciously and with mala- fide intention by the person concerned.[49]

This also remains to be a source of debate between the State judiciaries, and the Supreme Court, despite having the opportunity, did not delve into the discussion to resolve this conundrum. The dishonour of a cheque causes loss and inconvenience to the payee and causes business transactions to suffer a serious setback. Chapter XVII was introduced in the Act with the aim of restoring the credibility of cheques as a trustworthy substitute for cash payments.[50] In order to bring about uniformity, certainty and consistency in the judicial pronouncements of the country as regards the accountability of an HUF and a trust under sections 138 and 141 of the Act, it is necessary for the Supreme Court to declare binding law in respect of their treatment as an ‘association of individuals’ by exercising its jurisdiction under article 141 of the Constitution of India.

WRITTEN BY- SAURAV KAKRODA, LEGAL INTERN, PRIME LEGAL

REVIEWED BY- RITI GUPTA, LEGAL ASSISTANT, PRIME LEGAL

 

References:

[1] The Negotiable Instruments Act, 1881, No. 26, Acts of Parliament, 1881 [“NI Act”].

[2] Sen Gupta, Negotiable Instruments Act 1881, Kamal Law House 112 (1998).

[3] Law Commission of India, Fast Track Magisterial Courts for Dishonoured Cheque Cases, Report No. 213, http://lawcommissionofindia.nic.in/reports/report213.pdf.

[4] Id.

[5] Modi Cement Ltd. v. Kuchil Kumar Nandi, (1998) 3 SCC 249.

[6] M/s Dalmia Cement (Bharat) Ltd. v. M/s Galaxy Traders and Agencies Ltd., AIR 2001 SC 676.

[7] Gupta, supra note 2, at 450.

[8] Damodar S. Prabhu v. Sayed Babalal H., AIR 2010 SC 1907.

[9] NI Act, supra note 1, § 138.

[10] S. Krishnamurthi Aiyar, Law Relating to the Negotiable Instruments Act, Universal Law Publishing (2012) 12.

[11] Id. § 141.

[12] Ramanlal Bhailal Patel & Ors. v. State of Gujarat, (2008) 5 SCC 449 ¶ 22-32.

[13] Dadasaheb Rawal Co-operative Bank of Dondaicha Ltd. v. Ramesh s/o Jawrilal Jain & Ors., 2009 (2) MhLJ ¶ 7-11.

[14] Abraham Memorial Educational Trust v. C. Suresh Babu, 2012 (5) CTC 203.

[15] Id.

[16] Rajiv Runcie Ebenezer & Ors. v. C. Suresh Babu, Special Leave to Appeal (Crl.) Nos. 6763-64/2012.

[17] Murali Krishnan, Only ‘Karta’ of a Hindu Undivided Family can be prosecuted for dishonour of cheques Gujarat HC, Bar & Bench (2017), https://www.barandbench.com/news/karta-can-prosecuted-dishonour-cheque-huf-not-covered-section-141-ni-act-rules-gujarat-high-court.

[18] Shah Rajendrabhai Jayantilal v. D. Pranjivandas & Sons & Ors.,2017 GLH (2) 328.

[19] Hakkimuddin Taherbhai Shakor (Trustee) & Ors. v. State of Gujarat & Ors., 2017 CriLJ 3143.

[20] Shah Nitinkumar Dhirajlal vs Patel Mahendrakumar, R/SCR.A/2750/2015.

[21] Shibhu K. P. & Ors. v. State of Kerala & Ors., 2019 (3) KHC 1.

[22] Workmen v. Board of Trustees, Cochin Port Trust (1978) 3 SCC 119; Indian Oil Corp. v. State of Bihar (1986) 4 SCC 146l; Supreme Court Employees Welfare Association v. Union of India & Ors. (1989) 4 SCC 187.

[23] Ministry of Finance, Government of India, Decriminalization of Minor Offences for Improving Business Sentiment and Unclogging Court Processes (8th June 2020).

[24] Law Commission of India, supra note 2.

[25] Kusum Ingots and Alloys Ltd. v Pennar Peterson Securities Ltd., (2002) 2 SCC 745.

[26] Id.

[27] R. Vijayan v. Baby, (2012) 1 SCC 260, ¶ 16; see also, Rangappa v. Sri Mohan, (2010) 11 SCC 441.

[28] Palash Taing, Decriminalization Of Criminal Offence Under Section 138 Of Negotiable Instruments Act, 1881, (2020), https://www.mondaq.com/india/crime/966664/decriminalization-of-criminal-offence-under-section-138-of-negotiable-instruments-act-1881.

[29] Sakshi Satnalika, Is Decriminalisation of Section 138 of Negotiable Instrument Act, 1881 a Step Ahead?, Neolexvision Blogs (2020), https://www.aequivic.in/post/is-decriminalisation-of-section-138-of-negotiable-instrument-act-1881-a-step-ahead.

[30] Id.

[31] Meters and Instruments Private Limited and Anr. v. Kanchan Mehta, (2018) 1 SCC 560.

[32] Law Commission of India, supra note 2.

[33] Yashika Saravria, Decriminalising The Offence Of Dishonour Of Cheque: Why Not Desirable?, (2021), https://www.mondaq.com/india/financial-services/955680/decriminalising-the offence-of-dishonour-of-cheque-why-not-desirable.

[34] Satnalika, supra note 29.

[35] Dayawati v. Yogesh Kumar Gosin, (2001) 6 SCC 463.

[36] Satya Prashanth, Critical Analysis of Section 138 of the Negotiable Instruments Act, (2020), http://www.legalserviceindia.com/legal/article-1558-critical-analysis-of-section-138-of-negotiable-instruments-act.html.

[37] Law Commission of India, supra note 2.

[38] Agrima Sharma, Section 138 Negotiable Instruments Act, 1881 – An In Depth Analysis, Mondaq (Oct. 9, 2015), https://www.mondaq.com/india/trials-appeals-compensation/433334/section-138-negotiable-instruments-act-1881–an-in-depth-analysis.

[39] Id.

[40] Law Commission of India Report titled “Fast Track Magisterial Court for Dishonoured Cheque cases”, https://lawcommissionofindia.nic.in/reports/report213.pdf.

[41] Court Fees Act, 1870.

[42] NI Act, supra note 1, § 143(4).

[43] R. Vijayan v. Baby, (2012) 1 SCC 260.

[44] Rajesh Laxmichand Udeshi v. Pravin Hiralal Shah, Appeal (L) No.202 of 2012.

[45] Devansi Desai, Decriminalising Section 138 of Negotiable Instruments Act, 1881: Whether a right manoeuvre to boost the economy?, (2020), http://www.tjprc.org/publishpapers/2-52-1600671345-6IJPSLIRDEC20206.pdf.

[46] Goa Plast (P) Ltd. v. Chico Ursula D’Souza, (2004) 2 SCC 235.

[47] Id.

[48] Sharma, supra note 38.

[49] Desai, supra note 45.

[50] Law Commission of India, supra note 2.