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TMI Blog2010 (1) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... s prayed for in those petitions, the High Court framed the following two questions as arising for its consideration: "(A) Whether sub-section (2) of section 145 of the Negotiable Instruments Act, 1881, (for short, "the Act") confers an unfettered right on the complainant and the accused to apply to the Court seeking direction to give oral examination-in-chief of a person giving evidence on affidavit, even in respect of the facts stated therein and that if such a right is exercised, whether the Court is obliged to examine such a person in spite of the mandate of section 145(1) of the Act? (B) Whether the provisions of section 145 of the Act, as amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, (for short "the amending Act of 2002") are applicable to the complaints under section 138 of the Act pending on the date on which the amendment came into force? In other words, do the amended provisions of section 145(1) and (2) of the Act operate retrospectively?" 4. Answering the questions after a detailed and careful consideration of all the relevant provisions and earlier decisions of Courts, the High Court held that the person (complainant or his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but only procedural in nature and, therefore, those provisions would be applicable to the cases pending on the date they came into force. 7. Apart from considering the two questions the High Court also laid down, on the request of the parties, a number of guidelines [vide sub-paragraphs (a) to (r ) of paragraph 45 of the judgment] in regard to the procedure that the trial court, the complainant and the accused should follow in a dishonoured cheque trial on a complaint made under section 138 of the Act. We may have to refer to some of those guidelines later, at an appropriate place in this judgment. 8. The High Court judgment has given rise to these seven appeals, in which the following three issues arise for consideration by this Court: 1.The extent of the right of the accused under section 145(2) of the Act: whether the right of the accused is limited to cross-examination of any person giving evidence on affidavit or is it open to the accused to insist that notwithstanding the evidence earlier given on affidavit, on coming to the Court the complainant or his witness should first give deposition in examination-in-chief before being cross-examined by him? [appeals arising from SL ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would take cognizance of any offence punishable under section 138 of the Act. 10. The statement of objects and reasons appended to the bill explaining the provisions of the new Chapter stated as follows: "This clause [clause (4 ) of the Bill] inserts a new Chapter XVII in the Negotiable Instruments Act, 1881. The provisions contained in the new Chapter provide that where any cheque drawn by a person for the discharge of any liability is returned by the bank unpaid for the reason of the insufficiency of the amount of money standing to the credit of the account on which the cheque was drawn or for the reason that it exceeds the arrangements made by the drawer of the cheque with the bankers for that account, the drawer of such cheque shall be deemed to have committed an offence. In that case, the drawer, without prejudice to the other provisions of the said Act, shall be punishable with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both. The provisions have also been made that to constitute the said offence- (a )such cheque should have been presented to the bank within a period of six months of the da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... UK, the USA, Belgium, Portugal, Argentina, etc. Further, in regard to the object of the provisions, the Minister stated as follows : "In fact, the whole purpose of bringing about this provision is to make the drawing of cheque a regular mode of payment. Unfortunately, today if a cheque is given to a party, they will not consider it a sufficient means of payment, they will insist that unless the cheque is encashed, they will not take that as a kind of payment made." 12. The Minister then elaborated on the safeguards provided in the law to save an honest drawer from coming under the rigours of the section due to any bona fide mistake and finally went on to say as follows : "But in spite of time for payment and all other provisions that are made, if the party is not able to make good the amount of money which he owes to a particular party and in spite of the notice also he does not act, the conclusion is inescapable that he will be prosecuted, legal action will have to be taken. It is for the court to take a decision, whether he be imprisoned for one year, or double the amount that would be paid as fine or both things will have to be taken together. Ultimately, it is for the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act. 2. A large number of cases are reported to be pending under sections 138 to 142 of the Negotiable Instruments Act in various Courts in the country. Keeping in view the large number of complaints under the said Act pending in various Courts, a Working Group was constituted to review section 138 of the Negotiable Instruments Act, 1881 and make recommendations as to what changes were needed to effectively achieve the purpose of that section. 3. The recommendations of the Working Group along with other representations from various institutions and organisations were examined by the Government in consultation with the Reserve Bank of India and other legal experts, and a Bill, namely, the Negotiable Instruments (Amendment) Bill, 2001 was introduced in the Lok Sabha on 24-7-2001. The Bill was referred to Standing Committee on Finance which made certain recommendations in its report submitted to Lok Sabha in Nove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these appeals, we are mainly concerned with the provisions of section 145, it would be useful here to take a look at all the five sections introduced by the 2002 amendment : "143. Power of court to try cases summarily.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials: Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees: Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Criminal Procedure, 1973 (2 of 1974), every offence punishable under this Act shall be compoundable." 16. It may be noted that the provisions of sections 143, 144, 145 and 147 expressly depart from and override the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. The provisions of section 146 similarly depart from the principles of the Indian Evidence Act. Section 143 makes it possible for the complaints under section 138 of the Act to be tried in the summary manner, except, of course, for the relatively small number of cases where the Magistrate feels that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily. It is, however, significant that the procedure of summary trials is adopted under section 143 subject to the qualification "as far as possible", thus, leaving sufficient flexibility so as not to affect the quick flow of the trial process. Even while following the procedure of summary trials, the non obstante clause and the expression "as far as possible" used in section 143 coupled with t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es under section 138 of the Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of little help and cases of dishonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court system. The Law Commission in its report number 213 sent to the Union Minister for Law and Justice on 24-11-2008 advocated the setting up of Fast Track Magisterial Courts for dealing with the huge pendency of dishonoured cheque cases. In paragraph 1.5 of the report it was stated as follows : "1.5 Over 38 lakh cheque bouncing cases are pending in various courts in the country. There are 7,66,974 cases pending in criminal courts in Delhi at the Magisterial level as on 1st June, 2008. Out of this huge workload, a substantial portion is of cases under section 138 of the Negotiable Instruments Act which alone count for 5,14,433 cases (cheque bouncing). According to Gujarat High Court sources, there are approximately two lakh cheque bouncing cases all over the State, with the majority of them (84,000 cases) in Ahmedabad, followed by Surat, Vadodara and Rajkot. 73,000 cases were file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal arising from SLP (Crl.) No. 4760/2006, pointed out that sub-section (2) of section 145 uses both the words, "may" (with reference to the Court) and "shall" (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by the accused, the Court would be obliged to summon the person giving evidence on affidavit in terms of section 145(1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in Court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit. Mr. Ranjit Kumar referred to section 137 of the Indian Evidence Act, that defines "examination-in-chief", "cross-examination" and "re-examination" and on that basis sought to argue that the word "examine" occurring in section 145(2) must be construed to mean all the three kinds of examination of a witness. This, according to him, coupled with the use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts contained therein. What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in light of the provision of section 145(1) and having regard to the object and purpose of the entire scheme of sections 143 to 146. The scheme of sections 143 to 146 does not in any way affect the Judge's powers under section 165 of the Evidence Act. As a matter of fact, section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the Court on the application made by the prosecution or the accused? The affidavit of the person so summoned that is already on the record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused the deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit. Insofar as the prosecution is concerned, the occasion to summon any of its witnesses who has given his evidence on affidavit may ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not, whether on being summoned on the application made by the accused, the person giving evidence on affidavit must begin his deposition with examination-in-chief. The appellants are reading into the passage from the decision in Naib Din's case (supra) something that was not said by the Court. Moreover, the crucial difference between section 296(2) of the Code and section 145(2) of the Act is that the former deals with the evidence of a formal nature whereas under the latter provision, all evidences including substantive evidence may be given on affidavit. Section 296 is part of the elaborate procedure of a regular trial under the Code while the whole object of section 145(2) of the Act is to design a much simpler and swifter trial procedure departing from the elaborate and time consuming trial procedure of the Code. Hence, notwithstanding the apparent verbal similarity between section 145(2) of the Act and section 296(2) of the Code, it would be completely wrong to interpret the true scope and meaning of the one in the light of the other. Neither the legislative history of section 296(2) nor any decision on that section can persuade us to hold that under section 145(2) of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d has rightly taken the view that the provisions of sections 143 to 147 do not take away any substantive rights of the accused. Those provisions are not substantive but procedural in nature and would, therefore, undoubtedly, apply to the cases that were pending on the date the provisions came into force. We are fully in agreement and in order to buttress the view taken by the High Court we will only refer to a decision of this Court. 29. In Gurbachan Singh v. Satpal Singh [1990] 1 SCC 445, the Court was called upon to consider whether section 113A of the Evidence Act that created a presumption as to abetment of a suicide by a married woman would operate retrospectively or prospectively. The Court held: "37. The provisions of the said section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case. It is profitable to refer in this connection to Halsbury's Laws of England, Fourth Edition, Volume 44 page 570 wherein it has been stated that: 'The general rule is that all statutes, other than those which are merely declaratory or which rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused to give his evidence on affidavit subject to the provisions contained in sections 315 and 316 of the Code." 31. On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking-over the legislative functions. 32. On a bare reading of section 143 it is clear that the Legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of section 145 was merely an omission by the Legislature that it could fill up without difficulty. Even though the legislature in their wisdom did not deem it proper to incorporate the word 'accused' with the word 'complainant' in section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. There are two errors apparent in the reasoning of the High Court. First, if the Legislature in their wisdom did not think "it proper to incorporate a word 'accused' with the word 'complainant' in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the constitutional harmony and comity of instrumentalities. . .." (p. 332) 34. In Raghunath Rai Bareja's case (supra) while observing that it is the task of the elected representatives of the people to legislate and not that of the Judge even if it results in hardship or inconvenience, Supreme Court quoted in affirmation, the observation of Justice Frankfurter of the US Supreme Court which is as follows : "41. As stated by Justice Frankfurter of the US Supreme Court ( see "Of Law and Men: Papers and addresses of Felix Frankfurter") Even within their area of choice the Courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislator. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great Judges have constantly admonished there bretheren of the need for discipline in observing the limitations. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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