I am of the view that the aforesaid provisions under the Negotiable Instrument Act, 1881 override the provisions under Sections 200/202 of the Code of Criminal Procedure. Hence in the matter of prosecution under Section 138 of the Negotiable Instrument Act, 1881 when affidavit evidence has been filed at pre-summoning stage in due compliance of provisions of the said Act, the issue of postponing process in view of the amendment to Section 202 of the Code of Criminal Procedure does not arise.
Kolkata High Court (Appellete Side)
Nirmal Khandelwal vs M/S. Terai Dooars Tea Co. Pvt. Ltd. ... on 27 November, 2014
The petitioner is facing prosecution of commission of offence punishable under Section 138 of the Negotiable Instrument Act, 1881.
It is the contention of the petitioner that the petitioner resides out of the territorial jurisdiction of the learned Magistrate and the learned Magistrate failed and neglected to comply with the mandatory requirement under Section 202 of the Code of Criminal Procedure at the time of issuance of process. Decision of Apex Court in National Bank of Oman Vs. Barakara Abdul Aziz & Anr., (2013) 1 C Cr L R (SC) 585 is relied upon in support of such contention.
Ms. Mitra, learned counsel appearing for the petitioner submitted that the learned Courts below erred in law in failing to appreciate that non-compliance of mandatory provision of Section 202 of the Code of Criminal Procedure renders the consequential proceeding invalid. She further submitted that as the evidence in the instant case has not been recorded as yet, the petitioner may be allowed and the matter may be remanded for enquiry under Section 202 of the Code of Criminal Procedure.
Mr. Bhattacharya, learned counsel appearing on behalf of the opposite party no.1 submits that no prejudice has been suffered by the petitioner as the latter carries on business under Section 202of the Code of Criminal Procedure. He has submitted that the affidavit evidence under Section 145 of the Negotiable Instrument Act, 1881 having been filed at the pre-summoning stage, remand of the matter for further enquiry under Section 202 of the Code of Criminal Procedure would result in unnecessary delay. He prayed for dismissal of the revision petition. That apart in view of the special provision under the Negotiable Instrument Act, 1881, the compliance ofSection 202 of the Code of Criminal Procedure is not necessary.
I have considered the rival submissions of the parties as well as the materials on record. I find that from the averments made in the petition of complaint as well as the revision petition that the petitioner is carrying on business within the territorial jurisdiction of the learned Magistrate.
That apart, I am of the opinion that prosecution under Section 138 of the Negotiable Instrument Act, 1881, being a special law is governed by the provisions of the said Act, which naturally overrides the general provision under the Code of Criminal Procedure.
The provisions of the Sections 143 and 147 of the Negotiable Instrument Act, 1881 lays down a special procedure for conducting the trial of such cases so as to ensure its quick disposal. The complainant is entitled to file evidence by way of affidavit. It is settled law that the initial deposition of complainant may also be filed by way of affidavit. In Indian Bank Association & Ors. - Vs. - 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 post-summoning stage. The Court laid down the manner in which cognizance is to be taken and 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)CrPC and his examination, if any, can be done by a Magistrate and a finding can be given by the court under Section 263(h) CrPC 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 CrPC 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."