Judicial Analysis Court Copy Headnote Facts Arguments Court observation

Advocates:
Counsel for the Parties:
For the Applicant:Mr. Roop Naik, Advocate.
For the Respondent:Mr. Abhishek Saraf, Advocate.

IMPORTANT POINT
In a complaint under Section 138 NI Act Court cannot record evidence for deciding a preliminary objection raised by accused under Section 142 N.I. Act.

Headnote:Negotiable Instruments Act, 1881—Sections 138 and 143—Offence to be tried summarily—No provision in the Act or in CrPC for recoding evidence by Court upon a preliminary objection taken by accused—Impugned order directing Magistrate to record evidence for deciding the preliminary objection under Section 142 of the Act was liable to be set aside.
       Held: Section 143 of the N.I. Act., 1881, begins with a non-obstante Clause which makes clear that the enacting part of the Section, in case of conflict, has to be given an over-ridding effect over the provision or Act mentioned in the non obstante Clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment. Ordinarily, there is a close approximation between the non obstante clause and the enacting part of the section and the non obstante clause may throw some light as to the scope and ambit of the enacting part in the case of its ambiguity, but when the enacting part is clear its scope “cannot be cut down or enlarged” by resort to non obstante clause (Please see—Principles of Statutory Interpretation by Justice G.P. Singh.
       In the N.I. Act, 1881 or in the above provisions of the Code of Criminal Procedure, we do not find any provision for recording evidence by the Court upon a preliminary objection taken by an accused. A provision which does not find place in the procedural law specifically made for trial of a particular kind of offence under a particular enactment cannot be availed by a Court, because such an action in that behalf would be without jurisdiction or authority of the Court.
       After going through the above provisions of the NI Act, 1881 as also the provisions of Code of Criminal Procedure Sections 262 to 265, (both inclusive), we find that a direction to record evidence on a preliminary objection taken by an accused was not justified as the same would amount to enlarge jurisdiction of the trial Court which in fact is not vested with that Court in accordance with the procedural law. I am of the view that the same is totally impermissible and the direction issued by the learned Session Judge in this regard is wholly without jurisdiction.
        For the foregoing reasons, the revision is allowed. The impugned order dated 28.5.2010 passed by the learned Session Judge is set-aside. The trial Court is directed to dispose of the matter strictly in accordance the provisions of Section 143 of the NI Act, 1881 and as far as may be under provisions of Sections 262 to 265, (both inclusive) of the Code of Criminal Procedure. (Paras 9 to 12)
       Result: Petition allowed.