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IN THE HIGH COURT OF BOMBAY
M/s. Indraprastha Holdings Ltd.
Versus
Shri. Vijay J. Shah
Decided Date: 21/09/05
Negotiable Instruments Act, 1881 - Section 145 (as amended by Act, 2000) - Purpose behind amendment - Matters under Section 138 disposed of expeditiously in time bound manner - Procedure made less cumbersome. - The object of the Amending Act seems to be to ensure that cases under Section 138 are disposed of expeditiously in a time bound manner. The another object seems to be to make the procedure less cumbersome. In the present case, Court is concerned with Section 145 which was brought on the statute book by virtue of the Amending Act, Section 145 read thus : -
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. Section 145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded. It provides that the evidence of the complainant may be given by him on affidavit and on application made by the accused, the Court shall summon and examine the person giving evidence on affidavit as to the facts contained therein. Thus Section 145 is purely a rule of procedure. It is obvious that the rule of procedure which is incorporated in Section 145 does not affect any vested right of either parties to the complainant.
Negotiable Instruments Act, 1881 - Section 145 - Cheque dishonoured - Purely a procedural provision - Not affecting any substantive right - No new offence created - No new liability created - Section applicable to all complaints pending on date on which amendment came into force. - It cannot be disputed that Section 145 is a purely procedural provision and the same does not affect any substantive rights of the parties. The said provision does not creates any new offence or any new liability. There is nothing in the Amending Act to indicate that the provisions therein were intended to apply only prospectively. Thus, t he Section 145 will apply to all complaints pending on the date on which the Amendment Act came into force. Such a construction is not textually impossible.
Negotiable Instruments Act, 1881 - Section 145(2) (as amended by Act of 2000) - Cheque dishonoured - Criminal revision - Section 145 shows trial concluded expeditiously does not in any manner affect right of accused in cross-examine complainant and his witnesses - Prevision procedural in nature - Amendment operates retrospectively in its operation - Order set aside. - The most of the provisions which are inserted by the Amending Act of 2002 and in particular Section 145 are purely procedural in nature. The legislative intent as reflected from the statement of objects and reasons of Amending Act is to ensure that the procedure in complaints under Section 138 should not be cumbersome and there should be expeditious conclusion of trials. Section 145 which merely affects the procedure will have to be presumed to be retrospective in its operation and will apply t o all complaints pending on 6th February, 2003. Hence, the order passed by the Sessions Court deserves to be quashed and set aside. The Magistrate will now proceed to decide the complaint by applying Section 145 of the said Act of 1881.
( 1 ) ON the 25th July, 2005 this Revision Application was taken up for final hearing and after conclusion of hearing, today it is kept for dictation of judgment.
( 2 ) THE question which arises for consideration in this Revision Application is whether the provisions of the Negotiable instruments Act, 1881 (hereinafter referred to as the said Act of 1881) as amended by the negotiable Instruments (Amendment and miscellaneous Provisions) Act, 2002, (hereinafter referred to as the Amending Act) are applicable to the complaints under section 138 of the said Act of 1881 which were pending on the date on which the Amending act came into force.
( 3 ) WITH a view to appreciate the submissions made by the Counsel appearing for the parties, it will be necessary to refer to facts of the case. The Applicant is the complainant in a complaint under section 138 of the said Act of 1881. The Respondent No. 1. is the accused in the complaint. The complaint was filed in October, 2001 in the Court of the learned Additional Chief Metropolitan magistrate, 3rd Court at Mumbai. Process was issued on the complaint. In the said complaint, the Applicant filed an affidavit of evidence on 06th May, 2004. Thereafter, an Application was made by the Respondent No. 1 under section 145 (2) of the said Act of 1881. The said Application came to be rejected by order dated 26th October, 2004. A Revision application was preferred by the Respondent no. 1 for challenging the said order. By judgment and Order dated 12th April, 2005, the Revision Application was allowed by the learned Additional Sessions Judge. The learned Additional Sessions Judge held that as the Amending Act was brought into force on 06th February, 2003 i. e. after the date on which the complaint was filed, the Amended Act will apply prospectively unless otherwise made enforceable retrospectively. Therefore, the learned Additional Sessions Judge directed the learned Trial Judge to follow the procedure which was prevailing on the date of filing of the complaint.
( 4 ) THE learned Counsel appearing for the Applicant has placed reliance on various decisions of the Apex Court. The learned counsel for the Applicant submitted that the amendment made to the said Act of 1881 by the Amending Act will apply to all the pending complaints which were pending on the date on which the Amendment Act was brought into force. He submitted that the amendment which was brought into force by the Amending Act was procedural in nature and hence will apply retrospectively. The learned Counsel appearing for the Respondent No. 1 has supported the impugned order. He submitted that the Amending Act which deals with Penal provisions will obviously apply prospectively unless the Amending Act itself provides for retrospective operation.
( 5 ) I have considered the submissions. By Amending Act, Sections 143 to 147 were brought on the statute. Section 143 provides that notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under the Chapter XVII shall be tried by the Judicial Magistrate of First Class or by Metropolitan Magistrate and the provisions of Sections 262 to 265 of the said code shall, as far as may be, apply to such trials. Section 144 deals with mode of service of summons. Section 145 permits evidence to be led by affidavits. Section 146 provides that on production of bank's slip having thereon official mark denoting that cheque has been dishonoured, the court shall presume the fact of dishonour of the cheque until such fact is disproved. Section 147 makes the offence punishable under the said Act of 1881 compoundable. It will be necessary to refer to the statement of objects and reasons of the amending Act. In clause 1 of the statement of objects and reasons it is stated thus:
"the Negotiable Instruments Act, 1881 was amended by the Banking, Public Financial institutions and Negotiable Instruments laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penaltie
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