M/S.
Mandvi Co-Op Bank Ltd. Vs. Nimesh B. Thakore [2010] INSC 29 (11 January 2010)
Judgment
REPORTABLE
THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.
OF 2010 [Arising out of SLP (Crl.) No.3915/2006] M/S. MANDVI CO-OP BANK LTD.
..........Appellant VERSUS NIMESH B. THAKORE ..........Respondent WITH CRIMINAL
APPEAL NO(S)._______OF 2010 [Arising out of SLP (Crl.) No(s). 4760/2006,
5689/2006, 1106/2007, 6442/2007, 6443/2007 and 6703/2007]
AFTAB
ALAM, J.
1.
Leave granted
2.
In these appeals we are required to consider the special
provisions laid down by section 145 of the Negotiable Instruments Act, 1881
(`the Act', 2 hereinafter) for a dishonoured cheque trial and to consider how
far certain assertions made by the accused are in accordance with the
provisions contained in the two sub-sections of that section.
3.
The High Court had before it a large number of writ petitions and
applications under section 482 of the Code of Criminal Procedure. Most of those
petitions were filed on behalf of the accused but a few were also at the
instance of the complainants. On the basis of the grievances made and reliefs
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 witness) giving evidence 3 on
affidavit may be summoned by the court for putting questions as envisaged under
section 165 of the Evidence Act (vide paragraph 24 of the judgment). He would
also be summoned on an application made by the accused but the right of the
accused is limited to cross-examination of the witness. In terms of section
145(2) the accused can undoubtedly cross- examine a person whose evidence is
given on affidavit but the accused cannot insist that the witness, on coming to
court, should first depose in examination-in-chief even in respect of matters
which are already stated by him on affidavit (vide paragraph 25 of the
judgment). The High Court further explained that for the prosecution the
occasion to summon any of its witnesses who have given their evidence on
affidavit may arise in two ways. The prosecution may summon a person who has
given his evidence on affidavit and has been cross-examined for
"re-examination". This right of the prosecution, the High Court
observed, was not in dispute before it.
The
prosecution may also have to summon a witness whose evidence is given on
affidavit in case objection is raised by the defence regarding the validity
and/or sufficiency of proof of some document(s) submitted along with the
affidavit. In that event the witness may be summoned to appear before the court
to cure the defect and to have the document(s) properly 4 proved by following
the correct legal mode (vide paragraph 26 of the judgment).
5.
The High Court then considered the claim of the accused that any
evidence in defence, like the complainant's evidence, may also be given on
affidavit. It upheld the claim observing as follows:
"....Merely
because, section 145(1) does not expressly permit the accused to do so, does
not mean that the Magistrate cannot allow the accused to give his evidence on
affidavit by applying the same analogy unless there is just and reasonable
ground to refuse such permission. There is no express bar on the accused to
give evidence on affidavit either in the Act or in the Code.........I find no
justified reason to refuse permission to the accused to give his evidence on
affidavit subject to the provisions contained in sections 315 and 316 of the
Code."
6.
Coming then to the question (B), the High Court had no difficulty
in holding that the provisions of sub-sections (1) and (2) of section 145 were
not substantive 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 5
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
SLP (Crl.) No.4760/2006, SLP (Crl.) No.5689/2006, SLP (Crl.) No.1106/2007, SLP
(Crl.) No.6442/2007, SLP (Crl.) No.6443/2007, SLP (Crl.) No.6703/2007)
2.
Whether the provisions of sub-sections (1) and (2) of section 145 of the Act
would apply to proceedings that were pending on February 6, 2003, the date on
which those provisions were inserted in the Act? (appeal arising from SLP
(Crl.) No.4760/2006).
3.
Whether the right to give evidence on affidavit as provided to the complainant
under section 145(1) of the Act is also available to the accused? (appeal
arising from SLP (Crl.) No.3915/2006)
9.
For a proper appreciation of the issues it would be necessary to
examine the relevant legal provisions and to ascertain the object and reasons
for which those provisions were brought into existence by making amendments in
the Negotiable
Instruments Act, 1881. The Negotiable Instruments Act
was amended first by the Banking Public Financial Institutions and Negotiable
Instruments Laws (Amendment) Act, 1988 and a second time by the Negotiable
Instruments (Amendment and Miscellaneous Provisions) Act, 2002. The first
amendment inserted Chapter XVII in the Act, comprising sections 138 to 143.
Section 138 made, for the first time in the legislative history of the country,
the issuance of a cheque by any person in discharge of any debt or liability
owed by him to its holder, that was not honoured by the banker because of
insufficiency of funds in the account, a penal offence for the drawer that
would make him liable to punishment with imprisonment that might extend to one
year (now, two years after the second amendment with effect from February 6,
2003) or with fine that might extend to twice the amount of the cheque or both;
the four clauses of the proviso then laid down the preconditions to attract the
7 section, as safeguards for the honest drawer. Section 139 created a
presumption (rebuttable!) that the cheque was issued by the drawer in discharge
of any debt or liability owed by him to its holder. Section 140 provided that
it would not be open to the accused in a prosecution under section 138 to take
the plea that when he issued the cheque he had no reason to believe that on
presentation, the cheque may be dishonoured for the reasons stated in that
section. Section 141 dealt with offences by companies.
Section
142 laid down the conditions subject to which alone the court 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- 8 (a) such
cheque should have been presented to the bank within a period of six months of
the date of its drawal or within the period of its validity, whichever is
earlier; and (b) the payee or holder in due course of such cheque should have
made a demand for the payment of the said amount of money by giving a notice,
in writing, to the drawer of the cheque within fifteen days of the receipt of
the information by him from the bank regarding the return of the cheque unpaid;
and (c) the drawer of such cheque should have failed to make the payment of the
said amount of money to the payee or the holder in due course of the cheque
within fifteen days of the receipt of the said notice.
It has
also been provided that it shall be presumed, unless the contrary is proved,
that the holder of such cheque received the cheque in the discharge of a
liability. Defences which may or may not be allowed in any prosecution for such
offence have also been provided to make the provisions effective. Usual
provision relating to offences by companies has also been included in the said
new Chapter. In order to ensure that genuine and honest bank customers are not
harassed or put to inconvenience, sufficient safeguards have also been provided
in the proposed new Chapter. Such safeguards are- (a) that no court shall take
cognizance of such offence except on a complaint, in writing, made by the payee
or the holder in due course of the cheque;
(b) that
such complaint is made within one month of the date on which the cause of
action arises; and (c) that no court inferior to that of a Metropolitan
Magistrate or a Judicial Magistrate or a Judicial Magistrate of the first class
shall try any such offence."
11.
The speech of the Minister of Finance on December 2, 1988 in
course of the debate on the Bill in the Lok Sabha tells us that Chapter XVII
was inserted in the Act, in light of the Report submitted in the year 1975 by
the 9 Committee on Banking Laws headed by Dr. Rajamannar. It appears that in
course of the debate some members had expressed the view that the provisions of
Chapter XVII sought to be inserted in the Act, contained very abnormal, rather
very dangerous provisions, in that a kind of civil liability is supposed to be
converted into a kind of criminal act which would have far reaching
consequences. Dispelling the apprehensions of those members the Minister
pointed out that the proposed amendments were along the same lines as the law
prevailing in other countries such as the 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."
(emphasis
added)
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
10 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 to take a
decision. But these are the provisions which have been provided for so that the
parties drawing the cheques are careful enough to see that there are enough
resources available in their bank account and if a cheque is drawn, it will not
be returned."
(emphasis
added)
13.
The provisions of the newly inserted Chapter XVII, on coming into
force with effect from April 1, 1989, brought in a veritable deluge of cases in
the criminal court system. In the metropolitan cities and the commercial
centres of the country, it almost appeared that the main function of the
Magistrate's court was to recover monies on behalf of parties on the wrong end
of the commercial transactions that had gone sour. Complaints under section 138
of the Act came to be filed in such large numbers that it became impossible for
the courts to handle them within a reasonable time and it also had a highly
adverse effect on the court's normal work in ordinary criminal matters. A
remedial measure was urgently required and the legislature took action by
introducing further amendments in the Act by the Negotiable Instruments
(Amendment and Miscellaneous Provisions) Act, 2002. The 2002 amendment inserted
in the Act for the first time sections 143 to 147 besides bringing about a
number of changes in the existing provisions of sections 138 to 142. Section
143 gave to the court the power to try cases 11 summarily; section 144 provided
for the mode of service of summons;
section
145 made it possible for the complainant to give his evidence on affidavit;
section 146 provided that the bank's slip would be prima facie evidence of
certain facts and section 147 made the offences under the Act compoundable.
14.
The statement of objects and reasons appended to the bill stated
as follows:
"The
Negotiable
Instruments Act, 1881 was amended by the Banking,
Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act,
1988 wherein a new Chapter XVII was incorporated for penalties in case of
dishonour of cheques due to insufficiency of funds in the account of the drawer
of the cheque. These provisions were incorporated with a view to encourage the
culture of use of cheques and enhancing the credibility of the instrument. The
existing provisions in the Negotiable Instruments Act, 1881, namely, sections 138 to 142 in Chapter XVII have been
found deficient in dealing with dishonour of cheques. Not only the punishment
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 24th July, 2001. The Bill was referred to Standing
Committee on Finance which made certain recommendations in its report submitted
to Lok Sabha in November, 2001.
4.
Keeping in view the recommendations of the Standing Committee on Finance and
other representations, it has been decided to bring out, inter alia, the
following amendments in the Negotiable Instruments Act,1881, namely:-- (i) to
increase the punishment as prescribed under the Act from one year to two years;
(ii) to
increase the period for issue of notice by the payee to the drawer from 15 days
to 30 days;
(iii) to
provide discretion to the court to waive the period of one month, which has
been prescribed for taking cognizance of the case under the Act;
(iv) to
prescribe procedure for dispensing with preliminary evidence of the
complainant;
(v) to
prescribe procedure for servicing of summons to the accused or witness by the
court through speed post or empanelled private couriers;
(vi) to
provide for summary trial of the cases under the Act with a view to speeding up
disposal of cases;
(vii) to
make the offences under the Act compoundable;
(viii) to
exempt those directors from prosecution under section 141 of the Act who are
nominated as directors of a company by virtue of their holding any office or
employment in the Central 13 Government or State Government or a financial
corporation owned or controlled by the Central Government, or the State
Government, as the case may be;
(ix) to
provide that the Magistrate trying an offence shall have power to pass sentence
of imprisonment for a term exceeding one year and amount of fine exceeding five
thousand rupees;
(x) to
make the Information
Technology Act, 2000 applicable to the Negotiable
Instruments Act,1881 in relation to electronic cheques and truncated cheques
subject to such modifications and amendments as the Central Government, in
consultation with the Reserve Bank of India, considers necessary for carrying
out the purposes of the Act, by notification in the Official Gazette; and (xi)
to amend definitions of "bankers' books" and "certified
copy" given in the Bankers' Books Evidence Act,1891.
5. The
proposed amendments in the Act are aimed at early disposal of cases relating to
dishonour of cheques, enhancing punishment for offenders, introducing
electronic image of a truncated cheque and a cheque in the electronic form as
well as exempting an official nominee director from prosecution under the Negotiable
Instruments Act, 1881.
6. The
Bill seeks to achieve the above objects."
(emphasis
added)
15.
Though, 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 14 262 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 order to
that effect and thereafter recall any witness who may have been examined and
proceed to hear or rehear the case in the manner provided by the said Code.
(2) The
trial of a case under this section shall, so far as practicable, consistently
with the interests of justice, be continued from day to day until its
conclusion, unless the court finds the adjournment of the trial beyond the
following day to be necessary for reasons to be recorded in writing.
(3) Every
trial under this section shall be conducted as expeditiously as possible and an
endeavour shall be made to conclude the trial within six months from the date
of filing of the complaint.
144. Mode
of service of summons.
(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974), and for the purposes of this Chapter, a Magistrate issuing a summons
to an accused or a witness may direct a copy of summons to be served at the
place where such accused or witness ordinarily resides or carries on business
or personally works; for gain, by speed post or by such courier services as are
approved by a Court of Session.
(2) Where
an acknowledgment purporting to be signed by the 15 accused or the witness or
an endorsement purported to be made by any person authorised by the postal
department or the courier services that the accused or the witness refused to
take delivery of summons has been received, the court issuing the summons may
declare that the summons has been duly served.
145.
Evidence on affidavit.
(1)
Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2
of 1974), 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.
(2) The
court may, if it thinks fit, and shall, on the application of the prosecution
or the accused, summon and examine any person giving evidence on affidavit as
to the facts contained therein.
146.
Bank's slip prima facie evidence of certain facts.
The court
shall, in respect of every proceeding under this Chapter, on production of
bank's slip or memo having thereon the official mark denoting that the cheque
has been dishonoured, presume the fact of dishonour of such cheque, unless and
until such fact is disproved.
147.
Offences to be compoundable.
Notwithstanding
anything contained in the Code 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 16 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 the non-obstante clause in section 145 allows
for the evidence of the complainant to be given on affidavit, that is, in the
absence of the accused. This would have been impermissible (even in a summary
trial under the Code of Criminal Procedure) in view of sections 251 and 254 and
especially section 273 of the Code. The accused, however, is fully protected,
as under sub-section (2) of section 145 he has the absolute and unqualified
right to have the complainant and any or all of his witnesses summoned for
cross- examination. Sub-section (3) of section 143 mandates that the trial
would proceed, as far as practicable, on a day-to-day basis and sub-section (4)
of the section requires the Magistrate to make the endeavour to conclude the 17
trial within six months from the date of filing of the complaint. Section 144
makes the process of service of summons simpler and cuts down the long time
ordinarily consumed in service of summons in a regular civil suit or a criminal
trial. Section 145 with its non-obstante clause, as noted above, makes it
possible for the evidence of the complainant to be taken in the absence of the
accused. But the affidavit of the complainant (or any of his witnesses) may be
read in evidence "subject to all just exceptions". In other words,
anything inadmissible in evidence, e.g., irrelevant facts or hearsay matters
would not be taken in as evidence, even though stated on affidavit.
Section
146, making a major departure from the principles of the Evidence Act provides
that the bank's slip or memo with the official mark showing that the cheque was
dishonoured would by itself give rise to the presumption of dishonour of the
cheque, unless and until that fact was disproved. Section 147 makes the
offences punishable under the Act, compoundable.
17.
It is not difficult to see that sections 142 to 147 lay down a
kind of a special code for the trial of offences under Chapter XVII of the
Negotiable Instruments Act and sections 143 to 147 were inserted in the Act by
the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002
to do away with all the stages and processes in a regular criminal trial that
normally cause inordinate delay in its conclusion and to make the trial 18
procedure as expeditious as possible without in any way compromising on the
right of the accused for a fair trial.
18.
Here we must take notice of the fact that cases 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
November 24, 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 lac 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 lac cheque bouncing
cases all over t he State, with the majority of them (84,000 cases) in
Ahmedabad, followed by Surat, Vadodara and Rajkot. 73,000 cases were filed
under section 138 of the Negotiable
Instruments Act (cheque bouncing) on a single day by
a private telecom company before a Bangalore court, informed the Chief Justice
of India, K. G. Balakrishnan, urging the Government to appoint more judges to
deal with 1.8 crore pending cases in the country.
The
number of complaints which are pending in Bombay 19 courts1 seriously cast
shadow on the credibility of our trade, commerce and business. Immediate steps
have to be taken by all concerned to ensure restoration of the credibility of
trade, commerce and business."
19.
The situation arising from the mounting arrears is so grave that
in the `Vision Statement' presented by the Union Minister for Law and Justice
to the Chief Justice of India in course of the National Consultation for
strengthening the Judiciary towards reducing pendency and delays held on
October 24, 2009, cases of dishonoured cheques were cited among one of the
major bottlenecks in the criminal justice system. In paragraph 2 under the
heading `the Action Plan' it was stated as follows:
"2.
Identification of Bottlenecks: Clearing the System
1.
Studies have shown that cases under certain statutes and area of law are
choking dockets of magisterial and specialised courts, and the same need to be
identified.
2.
Bottlenecks shall be identified as follows:
a)
Matrimonial cases.
b) Cases
under section 498A of the Indian Penal Code, 1860.
c) Cases
under section 143 of the Negotiable Instrument Act, 1881.
d) to (i)
xxxxxxxxxx 1 On the date of the report, there were 5,91,818 cases pending in
sub-ordinate courts of State of Maharashtra, 1,57,191cases pending in the
sub-ordinate courts of State of Karnataka, 1,10,311 cases pending in the
sub-ordinate courts of State of Kerala and 5,14,433 cases in the sub-ordinate
courts of the State of Delhi under Section 138 of the Negotiable Instrument
Act.
20.
Once it is realized that sections 143 to 147 were designed
especially to lay down a much simplified procedure for the trial of dishonoured
cheque cases with the sole object that the trial of those cases should follow a
course even swifter than a summary trial and once it is seen that even the
special procedure failed to effectively and expeditiously handle the vast
multitude of cases coming to the court, the claim of the accused that on being
summoned under section 145(2), the complainant or any of his witnesses whose
evidence is given on affidavit must be made to depose in examination-in- chief
all over again plainly appears to be a demand for meaningless duplication,
apparently aimed at delaying the trial.
21.
Nevertheless, the submissions made on behalf of the parties must
be taken note of and properly dealt with. Mr Ranjit Kumar, learned Senior
Advocate, appearing for the appellant in 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 21 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 of the word "shall" with reference to the application
made by the accused made it quite clear that a person giving his evidence on
affidavit, on being summoned under section 145(2) at the instance of the
accused must begin his deposition with examination-in-chief, before he may be
cross-examined by the accused. In this regard he submitted that section 145 did
not override the Evidence Act or the Negotiable Instruments Act or any other
law except the Code of Criminal Procedure. He further submitted that the plain
language of section 145(2) was clear and unambiguous and was capable of only
one meaning and, therefore, the provision must be understood in its literal
sense and the High Court was in error in resorting to purposive interpretation
of the provision. In support of the submission he relied upon decisions of this
court in Dental Council of 22 India vs. Hari Prakash and Ors., (2001) 8 SCC 61
and Nathi Devi vs. Radha Devi, (2005) 2 SCC 271. Mr. Siddharth Bhatnagar,
learned counsel for the appellant in the appeal arising from SLP (Crl.) No.
1106/2007 also joined Mr. Ranjit Kumar in the submission based on literal
interpretation. He also submitted that ordinarily the rule of literal
construction should not be departed from, particularly when the words of the
statute are clear and unambiguous. He relied upon the decision in Raghunath Rai
Bareja vs. Punjab National Bank, (2007) 2 SCC 230.
22.
We are completely unable to appreciate the submission. The plea
for a literal interpretation of section 145(2) is based on the unfounded
assumption that the language of the section clearly says that the person giving
his evidence on affidavit, on being summoned at the instance of the accused
must start his deposition in court with examination-in-chief. We find nothing
in section 145(2) to suggest that. We may also make it clear that section 137
of the Evidence Act does not define "examine" to mean and include the
three kinds of examination of a witness; it simply defines
"examination-in- chief", "cross-examination" and
"re-examination". What section 145(2) of the Act says is simply this.
The court may, at its discretion, call a person giving his evidence on
affidavit and examine him as to the facts contained therein. But if an
application is made either by the prosecution or by the 23 accused the court
must call the person giving his evidence on affidavit, again to be examined as
to the 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. In so far as the
prosecution is concerned the occasion to summon any of its witnesses who has
given his evidence on affidavit may arise in two ways. The prosecution may
summon a person who has given his evidence on affidavit and has been
cross-examined for "re-examination". The 24 prosecution may also have
to summon a witness whose evidence is given on affidavit in case objection is
raised by the defence regarding the validity and/or sufficiency of proof of
some document(s) submitted along with the affidavit. In that event the witness
may be summoned to appear before the court to cure the defect and to have the
document(s) properly proved by following the correct legal mode. This appears
to us as the simple answer to the above question and the correct legal
position. Any other meaning given to sub-section (2) of section 145, as
suggested by Mr. Ranjit Kumar would make the provision of section 145(1) nugatory
and would completely defeat the very scheme of trial as designed under sections
143 to 147.
23.
Mr. Ranjit Kumar next submitted that section 145(2) was identical
to section 296(2) of the Code of Criminal Procedure and this court, in its
decision in State of Punjab vs. Naib Din, (2001) 8 SCC 578 dealing with section
296(2) of the Code made the following observation:
"8.
....If any party to a lis wishes to examine the deponent of the affidavit it is
open to him to make an application before the court that he requires the
deponent to be examined or cross- examined in court. This is provided in
sub-section (2) of section 296 of the Code. When any such application is made
it is the duty of the court to call such person to the court for the purpose of
being examined."
24.
Mr. Siddharth Bhatnagar representing the appellant in the appeal
arising from SLP (Crl.) No.1106/2007 also joined Mr. Ranjit Kumar in the
submission based on section 296(2) of Code. Mr. Bhatnagar submitted that since
section 145(2) is identical to section 296(2) of the Code, it should be
interpreted in light of the legislative history of section 296(2) and he tried
to take us into the details of the legislative history of section 296 of the
Code.
25.
In our view the submission is wholly without merit. Neither
section 296(2) of the Code nor the decision in Naib Din has any relevance or
application to the trial concerning a dishonoured cheque under sections 143 to
146 of the Act. The decision in Naib Din was rendered in a totally different
context and the issue before the court was 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 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 26 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 296(2) nor any decision on that section can persuade
us to hold that under section 145(2) of the Act, on being summoned at the
instance of the accused the complainant or any of his witnesses should be first
made to depose in examination-in-chief before cross-examination.
26.
Mr. Ranjit Kumar next submitted that in giving evidence on
affidavit, the deponent (the complainant or any of his witnesses) can introduce
hearsay or irrelevant facts in evidence to which the accused could have
objected if the deposition was made in court as examination-in-chief. Hence,
the accused must have the right to call the complainant (or his witness giving
evidence on affidavit) into the witness box for examination-in-chief so as to
get the inadmissible parts in the affidavit excluded from his evidence. Once
again the submission is devoid of merit. It is noted above that the evidence
given on affidavit by the complainant is "subject to all just
exceptions". This simply means that the evidence given on affidavit must
be admissible and it 27 must not include inadmissible materials such as facts
not relevant to the issue or any hearsay statements. In case the complainant's
affidavits contain statements that are not admissible in evidence it is always
open to the accused to point those out to the court and the court would then
surely deal with the objections in accordance with law.
27.
Mr. Ranjit Kumar lastly submitted that when the complainant gives
his evidence on affidavit, then the documents produced along with the
affidavit(s) are not proved automatically and unless the accused admits those
documents under section 294 of the Code of Criminal Procedure the documents
must be proved by oral testimony. We find no substance in this submission
either and we see no reason why the affidavits should not also contain the
formal proof of the enclosed documents. In case, however, the accused raises
any objections with regard to the validity or sufficiency of proof of the
documents submitted along with the affidavit and if the objections are
sustained by the court it is always open to the prosecution to have the
concerned witness summoned and get the lacuna in the proof of the documents corrected.
28.
Mr. Ranjit Kumar also made a feeble attempt to contend that the
provisions of sections 143 to 147 inserted in the Act with effect from February
6, 2003 would operate prospectively and would not apply to cases 28 that were
pending on that date. The High Court has considered the issue in great detail
and 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 vs. Satpal Singh and Ors., 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 relate only to matters of procedure or of evidence, are
prima facie prospective, and retrospective effect is not to be given to them
unless, by express words or necessary implications, it appears that this was
the intention of the legislature..."
38. It
has also been stated in the said volume of Halsbury's Laws of England at page
574 that:
29
"The presumption against retrospection does not apply to legislation
concerned merely with matters of procedure or of evidence; on the contrary,
provisions of that nature are to be construed as retrospective unless there is
a clear indication that such was not the intention of Parliament.""
(emphasis
added)
30.
Coming now to the last question with regard to the right of the
accused to give his evidence, like the complainant, on affidavit, the High
Court has held that subject to the provisions of sections 315 and 316 of the
Code of Criminal Procedure the accused can also give his evidence on affidavit.
The High Court was fully conscious that section 145(1) does not provide for the
accused to give his evidence, like the complainant, on affidavit. But the High
Court argued that there was no express bar in law against the accused giving
his evidence on affidavit and more importantly providing a similar right to the
accused would be in furtherance of the legislative intent to make the trial
process swifter. In paragraph 29 of the judgment, the High Court observed as
follows:
"It
is true that section 145(1) confers a right on the complainant to give evidence
on affidavit. It does not speak of similar right being conferred on the
accused. The Legislature in their wisdom may not have thought it proper to
incorporate a word `accused' with the word `complainant' in sub-section (1) of
section 145 in view of the immunity conferred on the accused from being
compelled to be a witness against himself under Article 20(3) of the
Constitution of India...."
30 Then
in paragraph 31 of the judgment it observed:
"....
Merely because, section 145(1) does not expressly permit the accused to do so,
does not mean that the Magistrate cannot allow the accused to give his evidence
on affidavit by applying the same analogy unless there is just and reasonable
ground to refuse such permission. There is no express bar on the accused to
give evidence on affidavit either in the Act or in the Code.....
I find no
justified reason to refuse permission to the 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
31 `accused' with the word `complainant' in section 145(1)......", it was
not open to the High Court to fill up the self perceived blank. Secondly, the
High Court was in error in drawing an analogy between the evidences of the
complainant and the accused in a case of dishonoured cheque. The case of the
complainant in a complaint under section 138 of the Act would be based largely
on documentary evidence. The accused, on the other hand, in a large number of
cases, may not lead any evidence at all and let the prosecution stand or fall
on its own evidence. In case the defence does lead any evidence, the nature of
its evidence may not be necessarily documentary; in all likelihood the defence
would lead other kinds of evidences to rebut the presumption that the issuance
of the cheque was not in the discharge of any debt or liability. This is the
basic difference between the nature of the complainant's evidence and the
evidence of the accused in a case of dishonoured cheque. It is, therefore,
wrong to equate the defence evidence with the complainant's evidence and to
extend the same option to the accused as well.
33.
Coming back to the fist error in the High Court's reasoning, in the
guise of interpretation it is not permissible for the court to make additions
in the law and to read into it something that is just not there. In Union of
India and Anr. vs. Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 32 323, this court
sounded the note of caution against the court usurping the role of legislator
in the guise of interpretation. The court observed:
"14.
...it is not the duty of the court either to enlarge the scope of the
legislation or the intention of the legislature when the language of the
provision is plain and unambiguous. The court cannot rewrite, recast or reframe
the legislation for the very good reason that it has no power to legislate. The
power to legislate has not been conferred on the courts. The court cannot add
words to a statute or read words into it which are not there.
Assuming
there is a defect or an omission in the words used by the legislature the court
could not go to its aid to correct or make up the deficiency. Courts shall
decide what the law is and not what it should be. The court of course adopts a
construction which will carry out the obvious intention of the legislature but
could not legislate itself. But to invoke judicial activism to set at naught
the legislative judgment is subversive of the constitutional harmony and comity
of instrumentalities...."
34.
In Raghunath Rai Bareja and Anr. vs. Punjab National Bank and
Ors., (2007) 2 SCC 230 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 33 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. A judge must not rewrite a statute, neither to
enlarge nor to contract it.
Whatever
temptations the statesmanship of policy- making might wisely suggest,
construction must eschew interpolation and evisceration. He must not read in by
way of creation. He must not read out except to avoid patent nonsense or
internal contradiction."
35.
In Duport Steels Ltd. vs. Sirs, [1980] 1 All ER 529, 534, Lord
Scarman expounded the legal position in the following words:
"But
in the field of statute law the judge must be obedient to the will of
Parliament as expressed in its enactments. In this field Parliament makes and
unmakes the law. The judge's duty is to interpret and to apply the law not to
change it to meet the judge's idea of what justice requires. Interpretation
does, of course, imply in the interpreter a power of choice where differing
construction are possible. But our law require the judge to choose the
construction which in his judgment best meets the legislative purpose of the
enactment. If the result be unjust but inevitable, the judge may say so and
invite Parliament to reconsider its provision. But he must not deny the
statute."
36.
In light of the above we have no hesitation in holding that the
High Court was in error in taking the view, that on a request made by the
accused the magistrate may allow him to tender his evidence on affidavit and
consequently, we set aside the direction as contained in sub-paragraph (r) of
34 paragraph 45 of the High Court judgment. The appeal arising from SLP (Crl.)
No. 3915/2006 is allowed.
37.
All the remaining six appeals are dismissed.
38.
There shall be no order as to costs.
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