About 138 ni act
Neeraj Arora (9897136755)
(Querist) 06 February 2013
This query is : Resolved
Dear friends, can any one advice me any citation for?
As That I have filed a case of 138 NI act against (Mr. A ). After getting bail, and during trial (Mr. A ) accept on his 313crpc statement, that the cheque in Question, was issued by him, and there was NO Amount in his account, at the time of issuing that cheque,
But during trial by mistake, No statement has recorded of the complainant U/S 254crpc.
Now accuse (Mr. A ) has filed a Revision that no evidence has recorded U/S 254crpc in lower court. Although he (Mr. A )has accepted in his 313crpc statement, that the cheque in question, was issued by him, and there was NO Amount in his account, at the time of issuing that cheque.
Nadeem Qureshi
(Expert) 06 February 2013
Dear Neeraj
at the time of filing complaint or later the complainant should filed evidence by way of affidavit, if the complainant did file evidence by way of affidavit, there is no need statement u/s 254 of Cr.PC, the magistrate may accept this evidence as per section 354 of Cr.PC.
This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of Sections 251 and 254 and especially Section 273 of the Code.
Nadeem Qureshi
(Expert) 06 February 2013
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR
S.B. Criminal Misc. Petition No. 285/2010
Rakesh Sharma
Versus
State of Rajastan and another
Date of Order :: 2nd April, 2010
HON'BLE MR. JUSTICE M.N. BHANDARI
Mr.Deendayal Khandelwal for petitioner.
Mr.Laxman Meea PP for State.
Mr.Neeraj Sharma for respondent.
Mr.V.R.Bajwa ]
Mr.Ashok Gaur ]
Mr.Pankaj Gupta ] Advocates assisting the Court.
*****
BY THE COURT:
REPORTABLE
This criminal miscellaneous petition involves following important questions of law:-
1. In a complaint for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act') whether evidence of the complainant may be given on affidavit at pre-summoning stage?
2. What is the effect of Sections 4 & 5 of the Code of Criminal Procedure (for short 'the Cr.P.C.') on Section 145 of the N.I. Act. Whether the provision of Section 145 has overriding effect over the provisions of the Cr.P.C.?
It is a case where complaint was filed for an offence under Section 138 of the N.I. Act. The complainant submitted affidavit at pre-summoning stage and thereupon order of cognizance was passed. The petitioner herein filed an application for recalling the order of cognizance on the ground that complainant should have been examined on oath. Application was dismissed vide order dated 1.2.2010 holding that it has been filed only with a view to delay the matter as otherwise, case is now fixed for cross-examination of the witnesses. Aggrieved by the aforesaid two orders, this criminal miscellaneous petition has been filed under Section 482 of the Cr.P.C. It is urged by learned counsel for petitioner that the Court below committed an error in issuing process as per Section 204 of the Cr.P.C. without examining complainant and his witnesses as per the procedure provided under Sections 200 and 202 of the Cr.P.C. Section 145 of the N.I. Act does not override Sections 200 and 202 of Cr.P.C. For issuance of process on a complaint, it is mandatory for the Magistrate to examine the complainant and his witness(s) on oath. In the present matter, aforesaid procedure has not been complied as at pre-summoning stage, complainant was examined on affidavit. The issue aforesaid is covered by a judgment of this Court in case of Prakash Chand Versus State of Rajasthan and another reported in 2009 (3) WLC (Raj.) 766. Therein it was held that in view of provisions of Sections 4 & 5 of the Cr.P.C., Section 145 of the N.I. Act does not have override Section 200 of the Cr.P.C. The prayer of learned counsel for petitioner is, accordingly, to set aside the two orders under challenge. Per contra, learned counsel for non-petitioner, Mr. Neeraj Sharma, submits that Section 145 of the N.I. Act contains a non-obstante clause. The provisions of the Code of Criminal Procedure are not attracted to the extent it is specified in the aforesaid provision. The complainant can be examined on affidavit even at a pre-summoning stage.
Learned member of the Bar, Mr. V.R. Bajwa, submits that Section 145 of the N.I. Act permits evidence of the complainant on affidavit and subject to all just exceptions be read in evidence in any inquiry, trial or other proceeding. The words 'enquiry, trial and other proceeding' used under Section 145 of the N.I. Act are of significance. The evidence of the complainant on affidavit is to be read not only in 'trial' but in 'enquiry' and 'other proceeding' also. In Prakash Chand's case (supra), the two words used under Section 145 of the N.I. Act i.e. 'enquiry' and 'other proceedings' escaped from the notice of the Court. The issue aforesaid was otherwise considered by the Hon'ble Apex Court in case of Radhey Shyam Garg Versus Naresh Kumar Gupta reported in 2009 Cr.L.R. (SC) 546, which has not been noticed in Prakash Chand's case. Learned counsel Mr. Pankaj Gupta submits that issue involved in this case was elaborately discussed by the Delhi High Court in case of Radhey Shyam Garg Vs. Naresh Kumar Gupta reported in 2008 (4) Crimes 570 (Del.). Referring to Section 145 of the N.I. Act, it was held that provisions of the Code of Criminal Procedure do not override Section 145 as it contains non-obstante clause. Judgment of the Delhi High Court was upheld by the Hon'ble Apex Court, thus the issue raised herein needs no more debate. Learned counsel Mr. Ashok Gaur submits that in a recent judgment in case of M/s. Mandvi Co-operative Bank Ltd. Versus Nimesh B. Thakore reported in JT 2010 (1) SC 259, the Hon'ble Apex Court has categorically held that provisions of Section 145 of the N.I. Act override the provisions of the Code of Criminal Procedure. The rights of the accused are otherwise protected at the time of trial in view of provisions of Section 145(2) of the N.I. Act. The Court further held that provisions of Sections 145 and 146 provide major departure from the principles of Evidence Act so as the provisions of the Cr.P.C. The provisions of Sections 142 to 147 lay down a kind of Special Code for the trial of offences under the Chapter XVII of the N.I. Act. This is to avoid inordinate delay which occurs in the regular process of the criminal trial. The contention of learned counsel is accordingly to hold that before issue of process, complainant and his witness(s) can be examined on affidavit. Learned counsel for non-petitioner further contended that the Negotiable Instruments Act being special legislation has overriding effect over the general law being the Code of Criminal Procedure, thus general Law should give way to the special Law. The object for amendment under the provisions of the N.I. Act was to provide speedy trial in the matter and taking note of large pendency of the cases, further recommendations have been made to depart from the general procedure provided under the Code of Criminal Procedure. I have considered the rival submissions of the parties and perused the record carefully.
The two questions framed are otherwise interlinked, thus are taken together for its answers. The Negotiable Instruments Act was amended with certain objects and has been elaborately discussed by the Hon'ble Apex Court in the case of M/s. Mandvi Co-op Bank Ltd. (supra). The departure from the provisions of the Evidence Act, the Code of Criminal Procedure to the extent indicated under Sections 142 to 147 was with the purpose and objects taken note of while bringing two amendments. First amendment was brought by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 and second by the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002. Sections 138 to 142 were inserted in Chapter XVII of the N.I. Act by the first amendment. By the second amendment of 2002, Sections 143 to 147 were inserted besides changes in the existing provisions under Section 138 to 142 of the N.I. Act. Section 145 of the N.I. Act makes it possible for the complainant to give his evidence on affidavit and at the same time, Section 146 of the N.I. Act provided banks slip to be prima facie evidence of certain facts. This was to depart from the provisions of the Indian Evidence Act and Code of Criminal Procedure. The object behind the amendments have been taken note of by the Hon'ble Apex Court in case of M/s. Mandvi Co-op Bank Ltd. (supra) while giving interpretation of the provisions of Section 145 of the N.I. Act apart from other provisions of the Act and taking note of the objects following observations have been made in Paras 16 and 17, which are quoted thus:-
16. It may be noted that the provisions of Sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of the adjective law for criminal trials. The provisions of Section 146 similarly depart from the principles of the Indian Evidence Act. Section 143 makes it possible for the complaints under Section 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily. It is, however, significant that the procedure of summary trials is adopted under Section 143 subject to the qualification as far as possible, thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non-obstante clause and the expression as far as possible used in Section 143 copuled with the non-obstante clause in Section 145 allows for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of Sections 251 and 254 and especially Section 273 of the Code. The accused, however, is fully protected, as under sub-section (2) of Section 145 he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examination. Sub-section (3) of Section 143 mandates that the trial would proceed, as far as practicable, on a day-to-day basis and sub-section (4) of the section requires the Magistrate to make the endeavour to conclude the trial within six months from the date of filing of the complaint. Section 144 makes the process of service of summons simpler and cuts down the long time ordinarily consumed in service of summons in a regular civil suit or a criminal trial. Section 145 with its non-obstante clause, as noted above, makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant (or any of his witnesses) may be read in evidence subject to all just exceptions. In other words, anything inadmissible in evidence, e.g., irrelevant facts or hearsay matters would not be taken in as evidence, even though stated on affidavit. Section 146, making a major departure from the principles of the Evidence Act provides that the bank's slip or memo with the official mark showing that the cheque was dishonoured would by itself give rise to the presumption of dishonour of the cheque, unless and until that fact was disproved. Section 147 makes the offences punishable under the Act, compoundable.
17. It is not difficult to see that Sections 142 to 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible within in any way compromising on the right of the accused for a fair trial. In the aforesaid paras, it is clearly observed that provisions of Sections 143 to 147 of the N.I. Act expressly depart from and override the provisions of the Code of Criminal Procedure, which is the main body of adjective law for criminal trials. It also departs from the principles of the Indian Evidence Act in view of provisions of Section 146 of the N.I. Act. In the aforesaid background, it would be gainful to further quote Section 145 of the N.I. Act to take proper interpretation of the provision. Section 145 of the N.I. Act is quoted hereunder:-
145. Evidence on affidavit :
(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.
(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.
The provisions of Section 145(1) enable the complainant to give evidence on affidavit in an enquiry, trial or other proceeding. Section 145 of the N.I. Act with its non-obstante clause makes it possible for evidence of the complainant to be taken on affidavit, which is not only in trial but in any enquiry and other proceeding. The provision aforesaid, thus, has overriding effect to the extent specifically provided therein. To have a further clarity on the issue, the provisions of Sections 4 and 5 of the Cr.P.C. are also quoted hereunder for ready reference:-
4. Trial of offences under the Indian Penal Code and other laws -
(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
5. Saving - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
Section 4(1) deals with offences under the Indian Penal Code, thus is not relevant to the present case. Sub-section (2) of Section 4 provides that offence under any other law shall be investigated, inquired into, tried and otherwise dealt with as per the provisions of the Code of Criminal Procedure, subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offence. Outcome of the aforesaid is that if any other enactment provides manner and place of investigation, enquiry, trial or otherwise deals with the offence, the other enactment will have overriding effect. Section 5 of the Code of Criminal Procedure, however, provides that nothing contained in the Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. The words specific provision to the contrary have been given interpretation in Prakash Chand's case to hold that in absence of a specific provision to the contrary, procedure provided under the Code of Criminal Procedure will prevail. The aforesaid finding has been given after taking note of the provisions of Section 145 of the N.I. Act, as aforesaid provision does not provide a reference of Sections 200 and 202 of the Cr.P.C. Thus, Section 145 of the N.I. Act cannot have overriding effect on the aforesaid provision in view of the judgment of Prakash Chand (supra). The aforesaid issue was otherwise subject matter in case of Radhey Shyam Garg (supra) as decided by the Delhi High Court and judgment upheld by the Hon'ble Apex Court. In the aforesaid case, a reverse argument was given than what has been considered in case of Prakash Chand (supra). Therein argument was that evidence of the complainant by way of affidavit can be considered as good only at a pre-summoning stage and not after the accused has been summoned. In other words, at a pre-summoning stage, evidence by the complainant can be by way of affidavit, which otherwise is not the view of this Court in the case of Prakash Chand (supra). Paras 8, 12 and 13 of Delhi High Court's judgment are quoted thus:-
8. Section 145 of the Act begins with words Notwithstanding anything contained in the Code..... Therefore, Section 145 of the Act is an exception to the normal rule as envisaged in Section 200 of the Code, that the complainant would be required to give his evidence by appearing in person and by making a statement on oath before the Court. Section 145 is located, in Chapter XVII of the Act which deals with penalties in case of dishonour of certain cheques for insufficiency of funs in the accounts. By virtue of Section 143 of the Act, notwithstanding anything contained in the Code, offences under the said Chapter XVII of the Act are triable by a Judicial Magistrate of the First Class, or by a Metropolitan Magistrate and the procedure applicable to summary trials under the Code, contained in Section 262 to 265, both inclusive, as far as may be, apply to such trials.
12. The evidence led on affidavit by the complainant, by virtue of Section 145 of the Act, is good evidence in any enquiry, trial and other proceedings under the Code. The pre-summoning stage is akin to the stage of enquiry. However, the evidence led on affidavit by the complainant can be read even at the stage of trial and other proceedings. Therefore, the submission of learned counsel for the petitioner that the evidence by way of affidavit can be considered as good evidence only at the pre-summoning stage, and not after the accused has been summoned and he has appeared, does not appear to be correct.
13. The expression the evidence of the complainant used in Section 145(1) of the Act, when read in the light of the words any person giving evidence on affidavit, shows that the evidence of the complainant is not restricted to the evidence by way of affidavit of the complainant himself, but that it may include the evidence by way of affidavit of any other person, as a witness in support of the complainant, Section 145(1) cannot be read as carving out an exception only qua the complainant. In fact, once the complainant is permitted to lead his own evidence on affidavit, it does not stand to reason that the evidence of any other witness, whom the complainant may wish to call, should only be led by requiring the witness to personally appear in Court to make his statement on solemn affirmation. From the use of expression on the application of the prosecution or the accused used in Section 145(2) of the Act, and keeping in mind the overall object of speedy disposal of complaints under Section 138 by a summary trial procedure, it follows that the accused and witnesses called by him, if any, in support of his defence are also entitled to lead their evidence on affidavit. By virtue of Section 262 of the code, Chapter XX of the Code dealing with trial of summons cases by Magistrates is applicable for summary trials. Section 254 of the Code, which is placed in the said chapter, states that if the Magistrate does not convict the accused under Section 252 and Section 253, he shall proceed to hear the prosecution and take such evidence as may be produced in support of the prosecution and also to hear the accused and take all such evidence as he produces in his defence. The judgment of Delhi High Court was challenged before the Hon'ble Supreme Court and upheld therein. However, the Hon'ble Supreme Court considered mainly as to whether evidence by way of affidavit can be given during the course of trial. Though in Para 3, it was noted that evidence of the complainant was recorded by way of affidavit at pre-summoning stage, cognizance of offence was taken thereupon and summons were issued. The post summoning evidence was also adduced by the complainant. Thus, the judgment aforesaid was given by the Hon'ble Apex Court after taking note of aforesaid factual aspects. Paras 3, 10, 15 and 16 of the aforesaid judgment are quoted thus:-
3. Respondent filed a complaint petition in the Court of Chief Metropolitan Magistrate, Delhi on or about 7.6.2004 which was marked as Criminal Complaint Case No.882/1 of 2004 for commission of an alleged offence under Section 138 of the Negotiable Instruments Act, 1881 (for short, `the Act'). Pre-summoning evidence by the complainant was recorded by way of an affidavit. Cognizance of the offence was taken and summons was directed to be issued by an order dated 9.6.2004. Post-summoning evidence was also adduced by the complainant on 26.3.2007 by way of an affidavit.
10. Evidence by way of affidavit, thus, was filed both in the civil proceedings as also in the criminal proceedings. We have noticed hereinbefore, the cross-examination is also over. It has not been shown nor do we find that the appellant has been prejudiced in any manner whatsoever. Section 145 of the Act reads as under :
"145.--Evidence on affidavit.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein."
It contains a non-obstante clause. The provisions of the Code of Criminal Procedure, 1973 are, thus, not attracted. The Court, subject to just exceptions, may allow the complainant to give evidence by way of affidavit. Such an evidence by way of affidavit had been made admissible in evidence in any enquiry, trial or other proceedings under the Code. Whereas sub-section (1) of Section 145 uses the term `may', sub-section (2) thereof uses the term `shall'. The first part of the aforementioned provision must be read with sub-section (1) of Section 145. It, therefore, merely points out to the discretionary power of the court conferred upon it by reason thereof. The Court, however, has no other option but to summon and examine any person who has given evidence on affidavit as to the facts contained therein if an application is filed either by the prosecution or the accused. Section 145 must be read reasonably. Section 296 of the Code of Criminal Procedure although refers to an evidence of a formal character, no doubt contains a pari materia provision. We may also notice the relevant provisions of the Code of Civil Procedure.
15. If affidavit in terms of the provisions of Section 145 of the Act is to be considered to be an evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be cross-examined and upon completion of his evidence, he may be re-examined. Thus, the words "examine any person giving evidence on affidavit as to the facts contained therein, in the event, the deponent is summoned by the court in terms of sub-section (2) of Section 145 of the Act', in our opinion, would mean for the purpose of cross-examination. The provision seeks to attend a salutary purpose. The statements of objects and reasons for enacting the said provision, inter alia read, inter alia, as under :
"Keeping in view of the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments Act, 1881, namely:--
(i) to (iii) ...
(iv) to prescribe procedure for dispensing with preliminary evidence of the complainant;
(v) ...
(vi) to provide for summary trial of the cases under the Act with a view to speeding up disposal of cases;"
16. The object of enactment of the said provision is for the purpose of expedition of the trial. A criminal trial even otherwise is required to be expeditiously held.
The outcome of the judgment cited above is that the provision of Section 145 of the N.I. Act is having overriding effect over the provisions of the Code of Criminal Procedure.
The matter is yet to be threshold in reference to Sections 4 & 5 of the Cr.P.C. Perusal of Section 4(2) reveals that investigation, enquiry and trial etc. for an offence other than under the Penal Code would be dealt with as per the provisions of the Code of Criminal Procedure subject to any other enactment providing manner or place of investigation, enquiry and trial etc. In the present matter, Section 145 of the N.I. Act provides manner of taking evidence of the complainant at the stage of enquiry, trial and other proceeding. In view of the aforesaid, provisions of Section 145 of the N.I. Act is having overriding effect more so when it contains non-obstante clause. So far as Section 5 of the Cr.P.C. is concerned, it also provides that provisions of the Code of Criminal Procedure will have effect unless a specific provision to the contrary exists. The issue now comes as to whether provision of Section 145 of the N.I. Act is having specific provision to the contrary to the Code of Criminal Procedure. For this purpose, reference of Section 145 of the N.I. Act is to be given again. Perusal of the provision quoted above shows that specific provision exists in regard to the evidence of the complainant on affidavit and is to be read in evidence in any enquiry, trial or other proceeding. Insertion of words enquiry and trial separately shows that evidence of the complainant by an affidavit can be at the stage of enquiry apart from the trial. Thus, in my opinion, there exists specific provision contrary to Sections 200 and 202 of the Cr.P.C. It is not necessary that a reference of the aforesaid provision has to be made to give Section 145 of the N.I. Act an overriding effect. When the specific stages like enquiry, trial or other proceeding for taking complainants evidence by affidavit has been given, then any provision contrary in the Code of Criminal Procedure cannot override Section 145 of the N.I. Act. The stage of enquiry is pre-summoning stage. The word inquiry has been defined under the Code of Criminal Procedure, which is reproduced hereunder for ready reference:- 'Inquiry' means every inquiry, other than a trial, conducted under this Code by a Magistrate or court.
In reference to the word inquiry, matter can be looked into further as otherwise it is a settled law that pre-summoning stage is the stage of enquiry. Discussion made above is otherwise supported by the judgment of the Honble Apex Court in case of Panakjbhai Nagjibhai Patel Versus State of Gujarat reported in AIR 2001 SC 567. In the aforesaid case, the effect of Section 142 of the N.I. Act was under consideration apart from other issues. Section 142 does not make specific reference of any provision of the Code of Criminal Procedure. The said provision also starts with non-obstante clause. The impact of Section 142 has been described after making comparison of the corresponding provisions of the Code of Criminal Procedure and the Honble Apex Court held thus:- The non-obstante expression provided in Section 142 is intended to operate only in respect of three aspects and nothing more. The first is this: insofar as the offence under Section 138 is concerned no Court shall take cognizance except upon a complaint made by the payee or the holder in due course of the cheque, the second is this : so far as the offence under Section 138 of the Negotiable Instruments Act is concerned such complaint shall be made within one month of the cause of action. The third is this : for the offence under Section 138, no Court inferior to that a Metropolitan Magistrate or Judicial Magistrate of first class shall try the said offence. Further, in the said case, Hon'ble Supreme Court held that:-
Non-application of the Criminal Procedure Code on any special jurisdiction or power conferred by any other law for the time being in force is thus limited to the area where such special jurisdiction or power is conferred. The non-obstante clause in Section 142 of the N.I. Act is intended to operate only in respect of three aspects and nothing more. The first is this : Under the Code Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of the N.I. Act says that insofar as the offence under Section 138 is concerned, no Court shall take cognizance except upon a complaint made by the payee or the other holder in due course of the cheque. The second in this : Under the Code a complaint could be made at any time subject to the provisions of Chapter XXXVI. But so far as the offence under Section 138 of the N.I. Act is concerned, such complaint shall be made within one month of the cause of action.
The third is this : Under Article 511 of the First Schedule of the Code, the offence is punishable with imprisonment for less than 3 years or with fine only under any enactment (other than Indian Penal Code) such offence can be tried by any Magistrate. Normally Section 138 of the N.I. Act which is punishable with a maximum sentence of imprisonment for one year would have fallen within the scope of the said Article. But Section 142 of the N.I. Act says that for the offence under Section 138, no court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of first class shall try the said offence. Perusal of the aforesaid judgment reveals that to the extent procedure is provided under Section 142 of the N.I. Act, the provisions contained in the Code of Criminal Procedure cannot have overriding effect. The outcome of the aforesaid is that provisions of Section 142 of the N.I. Act will have overriding effect on the procedure contrary provided under the Code of Criminal Procedure though particular section of the Code of Criminal Procedure has not been specifically mentioned under Section 142 of the N.I. Act. The same is the position of Section 145 of the N.I. Act wherein specific Section of the Code of Criminal Procedure has not been mentioned but the specific procedure exists in regard to evidence by the complainant at pre and post cognizance stage. The outcome of the aforesaid discussion makes the judgment of this Court in case of Prakash Chand (supra) per-in-curium to the extent it holds that Section 145 of the N.I. Act does not provide evidence on affidavit by the complainant at pre-cognizance stage. Para 15 of the aforesaid judgment is quoted hereunder:-
15. Further, it is to be seen as to whether the provisions of Section 142 and 145 of the Negotiable Instruments Act override the provisions of Section 200 Cr.P.C. It may be noted that Section 142 of the Negotiable Instruments Act does not exclude the examination of the complainant and witnesses on oath under Section 200 Cr.P.C. Section 145 of the Negotiable Instruments Act refers to evidence of the complainant on affidavit which does not relate to the stage before issuance of process under Section 204 Cr.P.C. A specific reference was required to be made in these Sections for dispensing with the examination of the complainant and his witnesses on oath by the Magistrate. In absence of it, it cannot be said that the provisions of the Negotiable Instruments Act would override the provisions of Section 200 Cr.P.C. While considering the provisions of Section 4 Cr.P.C., the Hon'ble Supreme Court in the case of Mirza Iqbal Hussain vs. State of U.P., AIR 1983 SC 60, in para 2, held as under:- Section 4(2) of the Code of Criminal Procedure provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is clear from this provision that in so far as the offences under law other than the Indian Penal Code are concerned, the provisions of the Code of Criminal Procedure apply in their full force subject to any specific or contrary provision made by the law under which the offence is investigated or tried. In reference to the aforesaid para, judgment in case of Panakjbhai Nagjibhai Patel (supra) and also judgment in case of Radhey Shyam Garg (supra) as decided by the Delhi High Court and upheld by the Honble Apex Court are required to be seen. Perusal of the aforesaid two judgments makes it clear that judgment in case of Prakash Chand (supra) cannot hold field. For clarity, it is necessary to mention that Section 145 of the N.I. Act is enabling provision for the complainant as the word may has been used for his evidence on affidavit. It is not mandatory that complainant has to give his evidence on affidavit only. However, when the complainant chooses to give his evidence on affidavit during the course of enquiry, trial and or other proceeding, it cannot be said that such evidence on affidavit can be allowed during the course of trial alone. It is a settled law that no word of statutory provision can be left out for the purpose of giving interpretation. The word enquiry used under Section 145 gets no meaning if evidence by the complainant on affidavit is not allowed before issuance of process as per Section 204 of Cr.P.C. If the intention of the legislature would have been that evidence by the complainant on affidavit can be given during the course of trial alone, then there was no reason to insert words enquiry and other proceeding in Section 145 of N.I. Act. Thus, in view of the aforesaid also, the argument of learned counsel for petitioner cannot be accepted or if we accept the argument, then Section 142 of the N.I. Act cannot be accepted in the manner interpreted by the Honble Apex Court in case of Panakjbhai Nagjibhai Patel (supra). The outcome of the discussion made above is that Section 145 of the N.I. Act is having overriding effect on the provisions of the Code of Criminal Procedure providing contrary procedure for the complainants evidence at the stage of enquiry, trial and other proceeding. Sections 4 & 5 of the Cr.P.C. cannot be given narrow interpretation otherwise the very purpose and object of bringing amendment under Sections 142 to 147 of the N.I. Act will frustrate as otherwise elaborately discussed by the Honble Apex Court in case of M/s. Mandvi Co-op Bank Ltd. (supra). In view of discussion made in reference of the provisions of the Negotiable Instruments Act as well as Code of Criminal Procedure, I am of the opinion that Sections 142 to 147 of the Negotiable Instruments Act have to be given effect and any provision contrary in the Code of Criminal Procedure cannot have overriding effect. The effect of the provisions of Sections 142 to 146 of the N.I. Act have been dealt with by Delhi High Court as well as Hon'ble Apex Court in the cases of Radhey Shyam Garg and M/s. Mandvi Co-op Bank Ltd. (Supra) wherein it has also been held that Sections 142 to 146 will attract to the trial in a complaint maintained pursuant to Section 190 of the Code of Criminal Procedure and it departs from the procedure contrary given in the Code of Criminal Procedure. In view of discussion made above, my composite answer to the two questions framed above is that evidence of complainant may be given on affidavit not only during the course of trial but even pre-summoning stage i.e., before issue of process pursuant to Section 204 of the Cr.P.C. In view of the aforesaid, provisions of Section 145 of the N.I. Act would be having overriding effect to the provisions contrary provided under the Code of Criminal Procedure. The issue having been answered in the aforesaid manner, thus there remains no substance in the criminal miscellaneous petition challenging order dated 1.2.2010 and accordingly same is dismissed. Since issue decided may provide assistance to the Courts dealing with the cases under the provisions of Section 138 of the N.I. Act, Registrar (Administration) is directed to place this judgment before the Hon'ble Chief Justice for taking appropriate decision for its circulation to the subordinate Courts.
(M.N. BHANDARI), J.
Sunil,JrPA
