Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2007 (1) Crimes 271
BOMBAY HIGH COURT
Bhosale D.B., J.
Peacock Industries Ltd.
& Ors. - Petitioners
versus
Budhrani Finance Ltd
& Ors. - Respondents
Crl. Writ Petition Nos. 1659, 1876, 1959, 2063, 2100, 2328, 2561, 2666, 2667, 3191, 2192, 2302, 2913 of 2005
and 160 of 2006
with
Criminal Application Nos. 1646, 1647, 1648, 1649, 1650, 1651, 1652, 1653, 1654, 1655, 1656, 1657, 1658, 1659, 1660, 1661, 1662, 1663, 1664, 1665 of 2006
with
Criminal Writ Petition Nos. 314, 476, 525, 591, 592, 593, 594, 615, 961, 997, 998, 1035, 1058, 1094, 1177, 1178, 1179, 1240 of 2006
Decided on 14-7-2006

Advocates:
Counsel for the Parties:
For the Petitioners in WP Nos. 1659/05 and 2063/05: Niranjan Loposingh i/b Niranjan and Co.
For the Petitioners in WP Nos. 1876/05, 1959/05, 2328/05, 2561/05, 2666/05, 2667/05, 2913/05, 476/06, 591/06, 592/06, 593/06, 594/06, 615/06, 961/06, 1177/06, 1178/06, 1179/06, 160/06, 1035/06, and 1140/06, 997/06, 998/06: S.V. Marwadi i/b S.P. Narkar.
For the Petitioner in WP Nos. 1646/06 to 1665/06: A.P. Mundargi Sr. Cou. with Dinesh Purandate i/b Revati Mohite Dere, Jehangir Khajotia.
For the Petitioneer in WP No. 314/06 J.P. Shah i/b., A.S. Khan & Associates.
For the Petitioner in WP No. 525/06: Dilip Devadiga.
For the Petitioner in WP No. 1058/06: Kimaya M. Prajapati.
For the Petitioners in WP No. 1094/06: Annie Fernandes.
For the State in W.P. Nos. 1659/05, 476/06, 1177/06 & 2192/05: S.R. Shinde, APP.
For the State in WP No. 1876/05, 1646/06 to 1665/06: M.M. Deshmukh, APP.
For the State in WP Nos. 1959/05, 314/06, 997/06, 1179/06, 1140/06: M.H. Mhatre, APP.
For the State in WP Nos. 2063/05, 2100/05, 2328/05, 2561/05, 2666/05, 2667/05, 2913/05, 525/06 & 615/06.
For the State in W.P. Nos. 591/06, 592/06, 592/06, 593/06, 594/06, 961/06, 1035/06 and 1094/06.U.V. Nikam, APP.
For the State in WP No. 1058/06, 1178/06: P.A. Pol, APP.
For the Respondent No. 1 in WP No. 1659/05, Vandana Jaisingh.
For the Respondent No. 2 in WP No. 2100/05:A.A. Chavan, Advocate.
For the Respondent No. 2 in WP No. 1876/05: A.A. Chavan
For the Respondent No. 2 in WP No. 1876/05: A.A. Chavan.
For the Respondent No. 2 in WP No. 1959/05, A.S. Khan & Associates.
For the Respondent No. 2 in W.P. No. 2100/05, Shrikant Shrimani.
For the Respondent No. 1 in W.P. No. 160/05, Divya S. Sanghavi.
For the Respondent No. 2 in W.P. Nos. 2328/05, 3191/05, Sanjog S. Parab.
For the Respondent No. 2 in WP No. 2561/05, 2566/05, 2667/05: Mihir Gheewala with J.P. Shah i/b A.S. Khan and Assoc.
For the Respondent No. 2 in WP No. 2192/05: A.H. Aney, Sr. Counsel.
For the Respondent No. 2 in WP No. 2913/05: Preti Shan
For the Respondent No. 2 in WP No. 314/06: Amol V. Doijode.
For the Respondent No. 2 in WP No. 525/06: Kafil Khan and Savita Mundra
For the Respondent No. 2 in WP No. 997/06, 998/06: Udaipuri i/b Udiapuri and Co.
For the Respondent Nos. 1 and 3 in WP No. 1160/06: Michael D’Souza.

IMPORTANT POINT
Section 145(1) of Negotiable Instruments Act gives complete freedom and option to complainant to give his evidence on affidavit and provision falls within realm of procedural law hence applicable to pending cases also after the provision was brought in statute by Amendment Act, 2002.

Headnote:(i) Negotiable Instruments Act, 1881 - Section 145 - Offence of dishonour of cheque - Evidence by way of affidavit - Provision gives complete freedom and option to complainant to give his evidence on affidavit - Right of accused under sub-section 2 of Section 145 of the Act is only to cross-examine a person giving evidence on affidavit - Evidence contemplated under Section 145(1) of the Act could not be termed as evidence of formal character hence provisions of Section 296 Cr.P.C. could not be equated with Section 145(2) of the Act - Provisions of Section 145 of the Act introduced by Amendment Act 2002 full within relation of procedural law - Procedure would be applicable to pending cases also. (Paras 24, 25, 32 and 35)
       (ii) Negotiable Instruments Act, 1881 - Section 145 - Criminal Procedure Code, 1973 - Section 315 and 316 - Evidence by affidavit - Whether accused could be permitted to file evidence by affidavit if he wanted to examine himself in defence? Yes. (Paras 30 & 31)
       (iii) Negotiable Instruments Act, 1881 - Section 145 - Evidence by affidavit - Exhibiting of documents - Objections - Objection should be taken before the evidence is tendered and documents are marked exhibits - It party tendering document with affidavit does not opt to lead evidence to cure the defect, Court could decide the objection then and there or mark such document for identification and decide it in final judgment. (Para 39)
       Result: Petitions dismissed.

JUDGMENT

Bhosale D.B., J. - The question raised in this group of writ petitions are common, the fact situation against which they are raised is similar and though the parties are different they all arise from somewhat similar orders and hence this group of petitions is being disposed of by common judgment.

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 o 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?

(c)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 with 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 overruled 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 Industries Ltd. v. Mannalal Khandelwal and Anr.1 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 are arising from similar orders passed on the applications made by the accused under Section 14

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IMPORTANT POINTSection 145(1) of Negotiable Instruments Act gives complete freedom and option to complainant to give his evidence on affidavit and provision falls within realm of procedural law hence applicable to pending cases also after the provision was brought in statute by Amendment Act, 2002.

Cases Referred (7)