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2017 (12) TMI 557 - HC - Indian LawsOffence punishable under Section 138 Negotiable Instruments Act - Held that - A contextual analysis of the provisions of Section 145 of the Act leaves no manner of doubt that the special procedure enabling the complainant to give evidence on affidavit notwithstanding anything contained in the Code of Criminal Procedure is a procedure available only in relation to a complaint for an offence punishable under Section 138 Negotiable Instruments Act. In the opinion of the Court, the said special procedure cannot be utilized or invoked by a complaint, the Drawer, in this case, to prosecute the accused for an offence under Penal Code; in this case, the Payee under Section 420 IPC. Thus, the impugned order summoning the applicant to stand his trial for an offence punishable under Section 420 IPC on the basis of affidavit evidence received by the learned Magistrate with the aid of Section 145 of the Negotiable Instruments Act is manifestly illegal and cannot be sustained. Thus, the impugned order in so far as it relates to summoning the applicant for an offence punishable under Section 420 IPC is not sustainable and is liable to be quashed. In the result, the instant application is partly allowed. The impugned order only to the extent that it summons the applicant to stand his trial for an offence punishable under Section 420 IPC is quashed. The rest of the order by which the applicant has been summoned to stand trial for an offence punishable under Section 138 of the Negotiable Instruments Act is upheld. The Magistrate would proceed with the complaint under Section 138 of the Negotiable Instruments Act in accordance with law and conclude the trial in accordance with provisions of Section 143 (2) &(3) of the Act. Interim order dated 15.12.2004 stands vacated.
Issues Involved:
1. Applicability of Section 145 of the Negotiable Instruments Act retrospectively. 2. Legality of summoning the applicant for an offence punishable under Section 420 IPC based on affidavit evidence. Issue-wise Detailed Analysis: 1. Applicability of Section 145 of the Negotiable Instruments Act Retrospectively: The primary contention raised by the applicant was that the complainant's affidavit filed under Section 145 of the Negotiable Instruments Act should not be considered valid as the complaint was instituted before the amendment came into effect. The Court noted that the provisions of Section 145 were introduced by Act No. 55 of 2002 with effect from 06.02.2003, while the complaint was filed on 13.11.2002. However, the evidence on affidavit was accepted by the Magistrate on 06.02.2004, after the amendment was in force. The Court referred to the Bombay High Court's decision in Peacock Industries Limited vs. Budhrani Finance Ltd., which held that the provisions of Section 145 are procedural and apply retrospectively to pending cases. This view was further supported by the Supreme Court's decision in M/s Mandavi Co-op Bank Ltd. v. Nimesh B. Thakore, which stated that procedural provisions do not take away substantive rights and thus apply to pending cases. Consequently, the Court found no merit in the applicant's argument that the provisions of Section 145 could not be applied retrospectively. 2. Legality of Summoning the Applicant for an Offence Punishable under Section 420 IPC Based on Affidavit Evidence: The applicant also challenged the summoning order under Section 420 IPC, arguing that the special procedure under Section 145 of the Negotiable Instruments Act, which allows for evidence on affidavit, is applicable only to offences under Section 138 of the same Act and not to offences under the Penal Code. The Court agreed with this contention, noting that Section 145 is specifically designed for complaints under Section 138 to streamline the procedure and expedite trials. The Court emphasized that the special procedure enabling the complainant to give evidence on affidavit is not applicable to offences under the Penal Code, such as Section 420 IPC. Therefore, the impugned order summoning the applicant for an offence under Section 420 IPC based on affidavit evidence was deemed illegal and unsustainable. Conclusion: The application was partly allowed. The order summoning the applicant for an offence under Section 420 IPC was quashed, while the order summoning the applicant for an offence under Section 138 of the Negotiable Instruments Act was upheld. The Magistrate was directed to proceed with the complaint under Section 138 in accordance with the law and conclude the trial as per the provisions of Section 143 (2) & (3) of the Act. The interim order dated 15.12.2004 was vacated.
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