2010 (12) TMI 1358 - HC - Indian Laws

Issues Involved:

1. Interpretation of Section 145 of the Negotiable Instruments Act, 1881, in conjunction with Sections 118, 138, 139, 142, 143, and 146, and its interplay with Section 200 of the Code of Criminal Procedure, 1973.
2. Whether a Magistrate is required to examine the complainant on oath before issuing process under Section 138 of the Negotiable Instruments Act, despite the affidavit verification.
3. The impact of the non obstante clause in Section 145 of the Negotiable Instruments Act on the requirement under Section 200 of the Code of Criminal Procedure.
4. The legislative intent behind the amendments to the Negotiable Instruments Act, particularly the introduction of Sections 143 to 147.

Detailed Analysis:

1. Interpretation of Section 145 of the Negotiable Instruments Act and its interplay with Section 200 of the CrPC:

The primary question addressed was whether Section 145 of the Negotiable Instruments Act, which allows evidence on affidavit, overrides the requirement under Section 200 of the CrPC for a Magistrate to examine the complainant on oath before issuing process. The court noted that Section 145 begins with a non obstante clause, indicating that it prevails over the provisions of the CrPC. Therefore, the affidavit submitted by the complainant can be considered sufficient for the Magistrate to issue process without the need for oral examination.

2. Requirement of examining the complainant on oath before issuing process:

The court observed that the legislative intent behind Section 145 was to simplify and expedite the procedure for handling complaints under Section 138 of the Negotiable Instruments Act. The court concluded that the Magistrate is not obliged to examine the complainant on oath if the complaint is supported by an affidavit and relevant documents. The Magistrate has the discretion to issue process based on the affidavit unless further examination is deemed necessary.

3. Impact of the non obstante clause in Section 145:

The non obstante clause in Section 145 of the Negotiable Instruments Act indicates that it overrides Section 200 of the CrPC. The court emphasized that the legislative intent was to dispense with the preliminary evidence stage, which includes the personal examination of the complainant, to expedite the process. This interpretation aligns with the objective of reducing the pendency of cheque dishonour cases and ensuring swift justice.

4. Legislative intent behind the amendments to the Negotiable Instruments Act:

The court referred to the Statement of Objects and Reasons for the Amending Act 55 of 2002, which highlighted the need to address the large pendency of cheque dishonour cases and expedite their disposal. The amendments, including the introduction of Sections 143 to 147, were aimed at simplifying the procedure and giving it an overriding effect over the CrPC to achieve quicker resolution of such cases.

Conclusion:

The court concluded that for issuing process under Section 200 of the CrPC, the Magistrate can rely on the affidavit filed by the complainant in support of the complaint under Section 138 of the Negotiable Instruments Act. The Magistrate is not required to examine the complainant on oath unless deemed necessary. The decision of the Division Bench in Maharaja Developers' case and the Single Judge in Amarnath Baijnath Gupta's case, which held otherwise, were overruled. The judgment emphasized that the amendments in the Negotiable Instruments Act were intended to streamline the process and reduce delays in cheque dishonour cases.

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