MAGMA LEASING LTD Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This revisional application has been preferred by the petitioner assailing the judgment and order dated 22.2.2006 passed by the learned Chief Judge, City Sessions Court, Calcutta in Criminal Revision No. 116/05 thereby setting aside the order dated 11.4.05 passed by the learned Metropolitan Magistrate, 8th Court, Calcutta in case No. C/282/97. The learned Magistrate by the impugned order dated 11.4.2005 allowed the complainant to give evidence on affidavit under section 145 of the Negotiable Instruments Act (in short the NI Act). The accused raised objection stating that section 145 of the NI Act came into force with effect from 6.2.2003 and, this provision cannot be applied in the Said case as it was a case of 1997. However, the learned Magistrate rejected the contention of the accused, and being aggrieved, the accused preferred a revision before the Session Court and the learned Chief Judge, City Sessions Court, Calcutta in the aforesaid criminal revision set aside the order of the learned Magistrate and directed the complainant to appear in Court and to give evidence in person from witness dock. Being aggrieved by, and dissatisfied with, the order of the learned Chief Judge, City Sessions Court, the complaintant as petitioner has preferred the instant revisional application before this Court.

(2.) Mr. Debasish Roy, learned Advocate for the petitioner submitted that section 145 of the NI Act was introduced by amendment in the Act and it was made effective from 6.2.03. The section lays down that, notwithstanding anything contained in the Code of Criminal Procedure, 1973, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. Sub-section (2) of section 145 indicates that the Court may on the application of the prosecution or the accused summon and examine any person giving evidence on affidavit as to the facts contained therein. The section 145 of the NI Act lays down procedure of giving evidence, as such, this section can be regarded as procedural law and not substantive law. As the section deals with procedure of examination and evidence of complainant, it has retrospective effect and, in respect of old cases which were pending prior to 6.2.03 in which complainant was not examined, the evidence of complainant may be taken on affidavit. The section 145 was introduced in order to expedite the hearing of NI Act cases as throughout India huge number of NI Act cases were pending. The object of introduction of section of the NI Act was very clear and the amendment was made for speedy disposal of NI Act cases. It is true that, unless there is any specific instruction in the amending Act, the operation becomes prospective but, in the instant matter considering the object of introduction of the section 145 of the NI Act it should be treated as retrospective.

(3.) Mr. Roy further contended that section 145 of the NI Act in no way imposes new disabilities or obligations or imposes new duties in respect of any transaction. The provisions of section 145 of the NI Act are related to the procedural matters and rules of recording of evidence and in such circumstances the observations of the Hon'ble Supreme Court in AIR 1976 SC 1471 did not in any way bar the application of section 145 of the NI Act. The Hon'ble Apex Court and this Court in several judicial pronouncements have held that the operation of procedural laws are generally retrospective in nature while statutes, which impose new obligations or duties or penalties or impose certain rights or liabilities on a person, can be prospective in nature. The learned Judge failed to appreciate the true spirit of the decision of the Hon'ble Supreme Court in AIR 1976 SC 1471. It is well-apparent that right of cross-examination of PW.2 by the accused persons is in no way affected by the said evidence-on-affidavit given by the PW.2. The learned Judge failed to consider the spirit as well as object of introduction of section 145 of the NI Act. The order of the learned Judge was accordingly bad in law and it should be set aside. In support of his contention Mr. Roy placed reliance on a decision of the Hon'ble Bombay High Court in M/s. Indraprastha Holdings Ltd. vs. Vijay J. Shah & Anr. reported in 2006 Cr. LJ 574.