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IN THE HIGH COURT OF BOMBAY
(D. B. Bhosale, J.)
PEACOCK INDUSTRIES LTD., UDAIPUR and others - petitioner
vs.
BUDHRANI FINANCE LTD., BOMBAY and another - Respondents.
Advocates Appeared
Petitioners were represented by : Niranjan Loposingh instructed by Mis Niranjan and Co. S. V. Marwadi instructed by S. P. Narkar, A P. Mundargi, Senior Counsel with Dinesh Purandare instructed by Mrs. Revati Mohite Dere, Jehangir Khajotia, J. P. Shah instructed by M.ls A S. Khan and Assoc, Dilip Devadiga, Smt. Kimaya M. Prajapati, Smt. Annie Fernandes.
For State : S. R. Shinde, AP.P., Mrs. M. M. Deshmukh, A.P.P., Mrs. M. H. Mhatre, A.P.P., A S. Shitole, AP.P., U. V. Nikam, A.P.P. and P. A Pol, A.P.P.
Respondents were represented by : Smt. Vandana Jaisingh, A. A. Chavan, A S. Khan and Assoc., Shrikant Shrimani, Smt. Divya S. Sanghavi, Sanjog S. Parab, Mihir Gheewala with J. P. Shah instructed by A. S. Khan and Assoc. S. G. Aney, Senior Counsel with Gautam Mishra and Yeshpal Thakur, Smt. Preeti Shah, Amol V. Doijode, Kafil Khan and Savita Mundra, Udaipuri instructed by Udaipuri and Co, Michael DSouza
Negotiable Instruments Act, 1881 - Section 138 - Dishonour of cheque. - Court can use police staff attached to Court, outside Court working hours to serve summons on accused or witness residing within jurisdiction of Court.
Negotiable Instruments Act, 1881 - Section 138 - Cr PC, 1973, Section 315 - Dishonour of cheque - Witness as a defence. - Once the accused is allowed to tender his evidence on affidavit it would be subject to all just exceptions and the guidelines and directions passed in his judgment.
Negotiable Instruments Act, 1881 - Sections 138 and 141 - Complaint for dishonour of cheque. - Complainant, while filing complaint against company/firm, should be filed only against person "incharge of and responsible for" conduct of business of company/firm at time of offence was committed as contemplated under Section 141 of Act.
Negotiable Instruments Act, 1881 - Sections 138 and 141(1) - Dishonour of cheque. - The Magistrate, while issuing summons to accused or a witness must direct a copy of summons to be served at place where such accused or witness ordinarily resides or personally works for gain as provided in Section 141(1) of Act.
Negotiable Instruments Act, 1881 - Sections 138 and 144 - Dishonour of cheque. - Where summons is served on accused either by speed post or by courier services or with help of police or by e-mail, complainant should file affidavit of service with proof of service.
Negotiable Instruments Act, 1881 - Sections 138 and 144(2) - Dishonour of cheque. - Where an acknowledgment purporting to be signed by accused or witness that accused or witness refuse to take delivery of summons has been received, Court issuing summons may declare that summons has been duly served as provided for in Section 144(2) of Act.
Negotiable Instruments Act, 1881 - Sections 138 and 145 - Cr PC, Section 204 - Complaint for dishonour of cheque. - The complaint must contain material facts and particulars constituting an offence under Section 138 of Act to enable the Magistrate to make up his mind for issuing process under Section 204 of Code.
Negotiable Instruments Act, 1881 - Sections 138 and 145 - Dishonour of cheque. - While recording evidence, procedure laid down by Apex Court in Bipin Shantilal Panchal’s case must be followed whenever an objection is raised regarding admissibility of any material or any item of oral evidence.
Negotiable Instruments Act, 1881 - Section 145(1)(2) (as amended) - Applicability of. - Since there is no vested right in accused in procedural law hence Section 145(1)(2) of Act applicable to pending cases as provisions contained in Section 145 cannot be said to have prospective effect and it must operate retrospectively.
2. The questions that fall for my consideration are as under;
(A) Whether sub -section (2) of section 145 of the Negotiable Instruments Act, 1881, (for short, "the Act") confers an unfettered right on the complainant and the accused to apply to the Court seeking direction to give oral examination -in -chief, of a person giving evidence on affidavit, even in respect of the facts stated therein and that if such a right is exercised, whether the Court is obliged to examine such a person in spite of the mandate of section 145( 1) of the Act?
(B) Whether the provisions of section 145 of the Act, as amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002,(for short "the amending Act of 2002") are applicable to the complaints under section 138 of the Act pending on the date on which the amendment came into force? In other words, do the amended provisions of section 145(1) and (2)
of the Act operate retrospectively?
3. I was given to understand by the learned counsel appearing for the petitioners in all the petitions that as the questions raised in this group of petitions are questions of law, reference to the facts of individual case is not necessary and accordingly I do not deem it necessary to narrate facts of each case for consideration of the questions that fall for my consideration. However, for the sake of convenience and brevity, I refer to the facts obtaining in the first writ petition No. 1659 of 2005 and 3 -4 other writ petitions to understand the fact situation against which the aforesaid questions have been raised.
4. In the first petition (Criminal Writ Petition No. 1659 of 2005) the petitioner -accused has impugned the order dated 1 -4 -2005 rendered by the learned Magistrate in the complaint filed by the respondent -complainant under section 138 of the Act, over -ruling the objection raised by the petitioner -accused. The objection was to the effect that section 145 of the Act cannot be taken recourse to by the complainant for giving evidence on affidavit since the complaint in this petition was filed much before the Amending Act of 2002 by which section 145 was inserted, came into force. The Amending Act was brought into force on 6 -2 -2003 whereas the complaint was filed on 3 -4 -1999. In this case the respondent -complainant, under section 145(1) of the Act was allowed to give his evidence on affidavit after 6 -2 -2003 and when the accused was asked to cross -examine the witness on 1 -4 -2005, the aforesaid objection was raised which was rejected by the order, impugned in the petition. In short, the submission was, the provisions of section 145 of the Act cannot be given retrospective effect. Similar objection was raised in criminal writ petition No. 2063 of 2005 and that was also over -ruled by the order impugned in that writ petition. In Writ Petition No. 2100 of 2005 the accused preferred an application under section 145(2) of the Act seeking direction to the complainant, who has given his evidence on affidavit, to again depose to the facts which have already been stated in the affidavit in examination -in -chief. That application was rejected by order dated 16 -7 -2005 relying upon the judgment of this Court in KSL and Industries Ltd. vs. Mannalal Khandelwal and anr., 2006 (I) Mh.L.J. (Cri) 86 = 2005 All MR (Cri) 1105. In Criminal Application No. 1646 of 2006, similar application under section 145(2) was filed and that was also rejected relying upon the very judgment of this Court. However, in that case the accused was given an opportunity to make a statement under section 294 of the Code of Criminal Procedure (for short "the Code"). Most of the cases in this group
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