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2016 DIGILAW 694 (CAL)

Trend Bags v. State of West Bengal

2016-09-01

JOYMALYA BAGCHI

body2016
JUDGMENT : JOYMALYA BAGCHI, J. 1. Learned Advocate of the petitioners submits that the learned Magistrate ought to have resorted to further enquiry under section 202 of the Code of Criminal Procedure prior to issuance of the process against the accused persons, inasmuch as, they reside beyond the territorial jurisdiction of the learned Magistrate. 2. Prosecution under Section 138 of the Negotiable Instruments Act is to be conducted in terms of special procedure laid down in the said Act as amended in 2002. Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 incorporated sections 143 to 147 to the aforesaid Act in order to ensure swift and efficient disposal of such cases. Section 143 gave power to try cases summarily and provided for a time bound disposal of such cases; section 144 provided for effective mode of service of summons while section 145 made an exception to the provisions of the Code and empowered the complainant to give evidence on affidavit; section 146 facilitated proof of the reason for dishonour by providing that bank's slip would be prima facia evidence of facts contained therein and section 147 made the offence compoundable. 3. In order to interpret the scope and ambit of such amendments the purpose of introducing them as narrated in the Statement of Objects and Reasons appended to the bill may be recounted as under:- "4. 3. In order to interpret the scope and ambit of such amendments the purpose of introducing them as narrated in the Statement of Objects and Reasons appended to the bill may be recounted as under:- "4. Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments Act, 1881, namely:- (i) to increase the punishment as prescribed under the Act from one year to two years; (ii) to increase the period for issue of notice by the payee to the drawer from 15 days to 30 days; (iii) to provide discretion to the court to waive the period of one month, which has been prescribed for taking cognizance of the case under the Act; (iv) to prescribe procedure for dispensing with preliminary evidence of the complainant; (v) to prescribe procedure for servicing of summons to the accused or witness by the court through speed post or empanelled private couriers; (vi) to provide for summary trial of the cases under the Act with a view to speeding up disposal of cases; (vii) to make the offences under the Act compoundable; (viii) to exempt those Directors from prosecution under Section 141 of the Act who are nominated as Directors of a company by virtue of their holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government, or the State Government, as the case may be; (ix) to provide that the Magistrate trying an offence shall have power to pass sentence of imprisonment for a term exceeding one year and amount of fine exceeding five thousand rupees; (x) to make the Information Technology Act, 2000 applicable to the Negotiable Instruments Act, 1881 in relation to electronic cheques and truncated cheques subject to such modifications and amendments as the Central Government, in consultation with the Reserve Bank of India, considers necessary for carrying out the purposes of the Act, by notification in the Official Gazette; and (xi) to amend definitions of `bankers' books' and `certified copy' given in the Bankers' Books Evidence Act, 1891. 5. 5. The proposed amendments in the Act are aimed at early disposal of cases relating to dishonour of cheques, enhancing punishment for offenders, introducing electronic image of a truncated cheque and a cheque in the electronic form as well as exempting an official nominee Director from prosecution under the Negotiable Instruments Act, 1881. 6. The Bill seeks to achieve the above objects." (emphasis supplied) 4. Reading the amendments particularly section 145 thereof in the light of the aforesaid Statement of Objects and Reasons, it leaves no room of doubt in one's mind that the recording of evidence of the complainant and his witnesses by way of affidavit dispenses with the preliminary deposition of the complainant and witnesses (if any) as required under section 200/202 of the Code of Criminal Procedure. 5. A learned Single Judge of this Court endorsed such view in M/s. Magma Leasing Limited v. The State, (2006)2 C Cr LR (Cal) 539, which reads as follows:- "4. On a perusal of Section 145 of the Negotiable Instruments Act, provision contained in Section 200 Cr.P.C., decisions cited by Mr. Bhattacharyya and the impugned order passed by the learned Metropolitan Magistrate, 9th Court, Calcutta it appears to me that acceptance of affidavit filed by the complainant pursuant to Section 145 of Negotiable Instruments Act should be read as sufficient compliance as provided in Section 200 Cr.P.C. That apart the Section 145 of the Negotiable Instruments Act runs as under: "S.145. Evidence on affidavit.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), 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 proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein." 5. Therefore, Section 200 of Cr.P.C. has no application in the instant case when the complainant filed an affidavit pursuant to Section 145 of N.I. Act. . . ." 6. In Indian Bank Association & Ors. v. Union of India & Ors. reported in (2014) 5 SCC 590 , the Apex Court, inter alia, held that affidavit evidence may be used both at the pre-summoning and postsummoning stage. . . ." 6. In Indian Bank Association & Ors. v. Union of India & Ors. reported in (2014) 5 SCC 590 , the Apex Court, inter alia, held that affidavit evidence may be used both at the pre-summoning and postsummoning stage. The Court laid down the manner in which cognizance is to be taken, 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 both the stages i.e. pre-summoning stage and the post- summoning stage. In other words, there is no necessity to recall and re-examine the complainant after summoning of the accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo motu by the court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if provisos (a), (b) and (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences." Accordingly, the Court laid down the following guidelines :- "23.1. The Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinise the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons. 23.2. The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The court, in appropriate cases, may take the assistance of the police or the nearby court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back unserved, immediate follow-up action be taken. 23.3. The court may indicate in the summons that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the court may pass appropriate orders at the earliest. 23.4. The court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for recalling a witness for cross-examination. 23.5. The court concerned must ensure that examination-in-chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The court has option of accepting affidavits of the witnesses instead of examining them in the court. The witnesses to the complaint and the accused must be available for cross-examination as and when there is direction to this effect by the court." 7. Such view of the Apex Court was followed by this Court in an unreported judgment, Nimal Khandelwal v. M/s. Terai Dooars Tea Co. Pvt. Ltd. & Anr. dated 27th November, 2014, being C.R.R. No.4158 of 2013. 8. Such view of the Apex Court was followed by this Court in an unreported judgment, Nimal Khandelwal v. M/s. Terai Dooars Tea Co. Pvt. Ltd. & Anr. dated 27th November, 2014, being C.R.R. No.4158 of 2013. 8. I am of the further view that subsequent amendment to Section 202 Cr.P.C. will not override the special procedure prescribed under Section 145 of the Negotiable Instruments Act in view of the non-obstante clause contained therein which not only overrides the Code but also all subsequent amendments thereto to the extent of its repugnancy unless a contrary intention is expressly evidenced by way of corresponding amendment to the special statute also. 9. In view of the aforesaid decisions of the Apex Court as well as this Court I am of the opinion that the issue is no longer res integra and has been raised by the petitioner with the sole intention of delaying and dilating the proceeding. 10. Accordingly, the petition is dismissed. 11. Trial Court is directed to proceed with the trial with utmost expedition and conclude the same at an early date and in accordance with law.