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2007(2) Bankmann 359
CALCUTTA HIGH COURT
P.N. Sinha, J.
Magma Leasing Ltd. —Petitioner
versus
State of W.B. and Ors. —Opp. Parties
C.R.R. No. 956 of 2006
Decided on 6-7-2007
For the Petitioner:Mr. Debasish Roy, Mr. Paritosh Sinha and Mr. Sandipan Ganguly, Advocates.
For the O.P. Nos. 2 and 3:Mr. Amit Bhattacharjee, Mr. Ayan Bhattacharjee, mr. Indrajit Adhikari and Mr. Indrajit Das, Advocates.
IMPORTANT POINT
Provisions of Section 145 of N.I. Act which came into force w.e.f 6-2-2003 is retrospective in operation.
Headnote:Negotiable Instruments Act, 1881—Section 145 (Provision in statute came into force with effect from 6-2-2003)—Examination of complainant in chief by way of affidavit during trial—Objection by accused that provision could not be applied in the case as it was a case of 1997—Trial Magistrate dismissed the objection—Sessions Court set aside the order in revision—Revision—Whether provisions of Section 145 of the Act relating to submission of evidence on affidavit could be extended to cases which were pending before the provision came into force on 6-6-2003? Yes.
Held: There is no dispute that every enactment or amendment has prospective operation unless specifically stated in the enactment or amendment that it would have retrospective operation. But the general rule has some exceptions and we should keep in mind that laws are two types viz, substantive and procedural. While considering the scope and object of introduction of any new section or Act it requires consideration the circumstances as well as the object behind introduction of such Act or section. The dominant purpose in construing a statute or amendment of any Act or section is to ascertain the intention of the Parliament behind introduction of such law. (Para 13)
The amendment in the NI Act in respect of Section 138 substituting the imprisonment to two years with effect from 06.02.2003 from one year would not operate as retrospective. The subject matter relating to sentence or fine should always be prospective and enhancement of sentence of imprisonment or fine cannot have retrospective operation as it touches with the persons liberty of the accused. In pending cases therefore, amendment of section showing change or enhancement of punishment should always be prospective. (Para 15)
It is thus clear that Section 145 was introduced by the Parliament with the aim of expediting the trial as quickly as possible. The scheme or the procedure of filing affidavit of complainant and his witness on affidavit as examination-in-chief has not taken away in any manner the right of accused to cross examine the complainant and his witnesses whose evidence of examination-in-chief on affidavit was filed in Court. Even this section also enables the accused or defence to lay evidence by affidavit. It is purely procedural in nature and it can be utilized in cases which are pending even prior to 06.02.2003, the date of making the Section 145 effective. The Supreme Court in Shreenath v. Rajesh, AIR 1998 SC 1827 held that, in interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid to justice. The amending Act of 2002 introducing certain changes in the NI Act are merely procedural in nature. Such changes were made by the Parliament with the object of ensuring that the procedure in complaints under Section 138 of the NI Act becomes less cumbersome and the pending trials as well as new trials be expedited. The language used in Section 145 clearly indicates that the legislature had the intention of making this section applicable in respect of complaint cases pending on 06.02.2003 and the effect of this section is retrospective. (Para 21)
Result: Revision allowed.
P.N. Sinha, J.—This revisional application has been preferred by the petitioner assailing the judgment and order dated 22.02.2006 passed by the learned Chief Judge, City Sessions Court, Calcutta in Criminal revision No. 116/05 thereby setting aside the order dated 11.04.2005 passed by the learned Metropolitan Magistrate, 8th Court, Calcutta in case No. C/282/97. The learned Magistrate by the impugned order dated 11.04.2005 allowed the complainant to give evidence on affidavit under Section 145 of the Negotiable Instruments Act (in short the NI Act). The accused raised objection stating that Section 145 of the NI Act came into force with effect from 06.02.2003 and, this provision cannot be applied in the said case as it was a case of 1997. However, the learned Magistrate rejected the contention of the accused, and being aggrieved, the accused preferred a revision before the Sessions Court and the learned Chief Judge, City Sessions Court, Calcutta in the aforesaid criminal revision set aside the order of the learned Magistrate and directed the complainant to appear in court and to give evidence in person from witness dock. Being aggrieved by and dissatisfied with the order of the learned Chief Judge, City Sessions Court, the complaint as petitioner has preferred the instant revisional application before this court.
2. Mr. Debasish Roy, learned Advocate for the petitioner submitted that Section 145 of the NI Act was introduced by amendment in the Act and it was made effective from 06.02.2003. The section lays down that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, 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 proceedings under the said Code. Sub-section (2) of Section 145 indicates that the court may on the application of the prosecution or the accused summon and examine any person giving evidence in affidavit as to the facts contained therein. The Section 145 of the NI Act lays down procedure of giving evidence, and as such, this section can be regarded as procedural law and not substantive law. As the section deals with procedure of examination and evidence of complainant, it has retrospective effect and, in respect of old cases which were pending prior to 6-2-2003 in which complainant was not examined, the evidence of complainant may be taken on affidavit. The Section 145 was introduced in order to expedite the hearing of NI Act cases as throughout India huge number of NI Act cases were pending. The object of introduction of Section 145 of the NI Act was very clear and the amendment was made for speedy disposal of NI Act cases. It is true that, unless there is any specific instruction in the amending Act, the operation becomes prospective but, in the instant matter considering the object of introduction of Section 145 of the NI Act it should be treated as retrospective.
3. Mr. Roy further contended that Section 145 of the NI Act in no way imposes new disabilities or obligations or imposes new duties in respect of any transaction. The provisions of Section 145 of the NI Act are related to the procedural matters and rules of recording of evidence and in such circumstances the observations of the Hon’ble Supreme Court in AIR 1976 SC 1471 did not in any way bar the application of Section 145 of the NI Act. The Hon’ble Apex Court and this court in several judicial pronouncements have held that the operation of procedural laws are generally retrospective in nature while statutes, which impose new obligations or duties or penalties or impose certain rights or liabilities on a person, can be prospective in nature. The learned Judge failed to appreciate the true spirit of the decision of the Hon’ble Supreme Court in AIR 1976 SC 14711. It is well apparent that of cross-examination of PW2 by the accused persons is in no way affected by the said evidence on affidavit given by the PW2. The lear
