IMPORTANT POINT
In the matter of prosecution under Section 138 of the Negotiable Instrument Act, 1881 when affidavit evidence has been filed at pre-summoning stage in due compliance of provisions of the said Act, the issue of postponing process in view of the amendment to Section 202 of the Code of Criminal Procedure does not arise.

ORDER

Joymalya Bagchi, J.—Order dated 24.09.2013 passed by the learned Chief Judge, City Sessions Court at Calcutta affirming the order dated 29.07.2013 passed by the learned 17th Metropolitan Magistrate, Calcutta in Complaint Case No. 18808 of 2007 under Section 138 of the Negotiable Instrument Act, 1881 has been assailed in this revision petition.

2. The petitioner is facing prosecution of commission of offence punishable under Section 138 of the Negotiable Instrument Act, 1881.

3. It is the contention of the petitioner that the petitioner resides out of the territorial jurisdiction of the learned Magistrate and the learned Magistrate failed and neglected to comply with the mandatory requirement under Section 202 of the Code of Criminal Procedure at the time of issuance of process. Decision of Apex Court in National Bank of Oman Vs. Barakara Abdul Aziz & Anr. (2013) 1 CCr. LR (SC) 585 is relied upon in support of such contention.

4. Ms. Mitra, learned counsel appearing for the petitioner submitted that the learned Courts below erred in law in failing to appreciate that non-compliance of mandatory provision of Section 202 of the Code of Criminal Procedure renders the consequential proceeding invalid. She further submitted that as the evidence in the instant case has not been recorded as yet, the petitioner may be allowed and the matter may be remanded for enquiry under Section 202 of the Code of Criminal Procedure.

5. Mr. Bhattacharya, learned counsel appearing on behalf of the opposite party no.1 submits that no prejudice has been suffered by the petitioner as the latter carries on business within the territorial jurisdiction of the learned Magistrate. He has submitted that the affidavit evidence under Section 145 of the Negotiable Instrument Act, 1881 having been filed at the pre-summoning stage, remand of the matter for further enquiry under Section 202 of the Code of Criminal Procedure would result in unnecessary delay. He prayed for dismissal of the revision petition. That apart in view of the special provision under the Negotiable Instrument Act, 1881, the compliance of Section 202 of the Code of Criminal Procedure is not necessary.

6. I have considered the rival submissions of the parties as well as the materials on record. I find that from the averments made in the petition of complaint as well as the revision petition that the petitioner is carrying on business within the territorial jurisdiction of the learned Magistrate.

7. That apart, I am of the opinion that prosecution under Section 138 of the Negotiable Instrument Act, 1881, being a special law is governed by the provisions of the said Act, which naturally overrides the general provision under the Code of Criminal Procedure.

8. The provisions of the Sections 143 and 147 of the Negotiable Instrument Act, 1881 lays down a special procedure for conducting the trial of such cases so as to ensure its quick disposal. The complainant is entitled to file evidence by way of affidavit. It is settled law that the initial deposition of complainant may also be filed by way of affidavit. In Indian Bank Association & Ors. v. Union of India & Ors., (2014) 5 SCC 590 the Apex Court, inter alia, held that affidavit evidence may be used both at the pre-summoning and post-summoning stage. The Court laid down the manner in which cognizance is to be taken and process be issued and trial conducted for speedy disposal of such cases. The Court held as follows:

“18. We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. The affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at