Case: Rakesh Sharma Vs State of Rajasthan and Anr.. Rajasthan High Court
| Judges | M.N. Bhandari, J. |
| Issue | Criminal Law |
| Citation | RLW 2010 (2) Raj 1847 |
| Judgement Date | April 02, 2010 |
| Court | Rajasthan High Court |
Judgment:
M.N. Bhandari, J., (Jaipur Bench)
1. This criminal miscellaneous petition involves following important questions of law:
1. In a complaint for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short 'N.I. Act') whether evidence of the complainant may be given on affidavit at pre-summoning stage?
2. What is the effect of Sections 4 & 5 of the Code of Criminal Procedure (for short 'the Cr.P.C.') on Section 145 of the N.I. Act. Whether the provision of Section 145 has overriding effect over the provisions of the Cr.P.C.?
2. It is a case where complaint was filed for an offence under Section 138 of the N.I. Act. The complainant submitted affidavit at pre-summoning stage and thereupon order of cognizance was passed. The petitioner herein filed an application for recalling the order of cognizance on the ground that complainant should have been examined on oath. Application was dismissed vide order dated 1.2.2010 holding that it has been filed only with a view to delay the matter as otherwise, case is now fixed for cross-examination of the witnesses. Aggrieved by the aforesaid two orders, this criminal miscellaneous petition has been filed under Section 482 of the Cr.P.C.
3. It is urged by learned Counsel for petitioner that the Court below committed an error in issuing process as per Section 204 of the Cr.P.C. without examining complainant and his witnesses as per the procedure provided under Sections 200 and 202 of the Cr.P.C. Section 145 of the N.I. Act does not override Sections 200 and 202 of Cr.P.C. For issuance of process on a complaint, it is mandatory for the Magistrate to examine the complainant and his witness(s) on oath. In the present matter, aforesaid procedure has not been complied as at pre-summoning stage, complainant was examined on affidavit. The issue aforesaid is covered by a judgment of this Court in case of Prakash Chand v. State of Rajasthan and Anr. reported in 2009 (3) WLC 766. Therein it was held that in view of provisions of Sections 4 & 5 of the Cr.P.C., Section 145 of the N.I. Act does not have override Section 200 of the Cr.P.C. The prayer of learned Counsel for petitioner is, accordingly, to set aside the two orders under challenge.
4. Per contra, learned Counsel for non-petitioner, Mr. Neeraj Sharma, submits that Section 145 of the N.I. Act contains a non-obstante clause. The provisions of the Code of Criminal Procedure are not attracted to the extent it is specified in the aforesaid provision. The complainant can be examined on affidavit even at a pre-summoning stage.
5. Learned member of the Bar, Mr. V.R. Bajwa, submits that Section 145 of the N.I. Act permits evidence of the complainant on affidavit and subject to all just exceptions be read in evidence in any inquiry, trial or other proceeding. The words 'enquiry, trial and other proceeding' used under Section 145 of the N.I. Act are of significance. The evidence of the complainant on affidavit is to be read not only in 'trial' but in 'enquiry' and 'other proceeding' also. In Prakash Chand's case (supra), the two words used under Section 145 of the N.I. Act i.e. 'enquiry' and 'other proceedings' escaped from the notice of the Court. The issue aforesaid was otherwise considered by the Hon'ble Apex Court in case of Radhey Shyam Garg v. Naresh Kumar Gupta reported in 2009 Cr.L.R. (SC) 546, which has not been noticed in Prakash Chand's case.
6. Learned Counsel Mr. Pankaj Gupta submits that issue involved in this case was elaborately discussed by the Delhi High Court in case of Radhey Shyam Garg v. Naresh Kumar Gupta reported in 2008 (4) Crimes 570 (Del.). Referring to Section 145 of the N.I. Act, it was held that provisions of the Code of Criminal Procedure do not override Section 145 as it contains non-obstante clause. Judgment of the Delhi High Court was upheld by the Hon'ble Apex Court, thus the issue raised herein needs no more debate.
7. Learned Counsel Mr. Ashok Gaur submits that in a recent judgment in case of Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore reported in JT 2010 (1) SC 259, the Hon'ble Apex Court has categorically held that provisions of Section 145 of the N.I. Act override the provisions of the Code of Criminal Procedure. The rights of the accused are otherwise protected at the time of trial in view of provisions of Section 145(2) of the N.I. Act. The Court further held that provisions of Sections 145 and 146 provide major departure from the principles of Evidence Act so as the provisions of the Cr.P.C. The provisions of Sections 142 - 147 lay down a kind of Special Code for the trial of offences under the Chapter XVII of the N.I. Act. This is to avoid inordinate delay which occurs in the regular process of the criminal trial. The contention of learned Counsel is accordingly to hold that before issue of process, complainant and his witness(s) can be examined on affidavit.
8. Learned Counsel for non-petitioner further contended that the Negotiable Instruments Act being special legislation has overriding effect over the general law being the Code of Criminal Procedure, thus general Law should give way to the special Law. The object for amendment under the provisions of the N.I. Act was to provide speedy trial in the matter and taking note of large pendency of the cases, further recommendations have been made to depart from the general procedure provided under the Code of Criminal Procedure.
9. I have considered the rival submissions of the parties and perused the record carefully.
10. The two questions framed are otherwise interlinked, thus are taken together for its answers. The Negotiable Instruments Act was amended with certain objects and has been elaborately discussed by the Hon'ble Apex Court in the case of Mandvi Co-op Bank Ltd. (supra). The departure from the provisions of the Evidence Act, the Code of Criminal Procedure to the extent indicated under Sections 142 - 147 was with the purpose and objects taken note of while bringing two amendments. First amendment was brought by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 and second by the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002. Sections 138 - 142 were inserted in Chapter XVII of the N.I. Act by the first amendment. By the second amendment of 2002, Sections 143 - 147 were inserted besides changes in the existing provisions under Section 138 - 142 of the N.I. Act. Section 145 of the N.I. Act makes it possible for the complainant to give his evidence on affidavit and at the same time, Section 146 of the N.I. Act provided bank''s slip to be prima facie evidence of certain facts. This was to depart from the provisions of the Indian Evidence Act and Code of Criminal Procedure. The object behind the amendments have been taken note of by the Hon'ble Apex Court in case of Mandvi Co-op Bank Ltd. (supra) while giving interpretation of the provisions of Section 145 of the N.I. Act apart from other provisions of the Act and taking note of the objects following observations have been made in Paras 16 and 17, which are quoted thus:
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 the adjective law for criminal trials. The provisions of Section 146...
To continue reading
Request your trial