Magma Leasing Ltd v. State Of West Bengal

(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 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 Honble Supreme Court in AIR 1976 SC 1471 [LQ/SC/1976/115] did not in any way bar the application of section 145 of the NI Act. The Honble 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 Honble Supreme Court in AIR 1976 SC 1471 [LQ/SC/1976/115] . 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 Honble Bombay High Court in M/s. Indraprastha Holdings Ltd. vs. Vijay J. Shah and Anr. reported in 2006 Cr. LJ 574.

(4.) On the contrary, Mr. Ayan Bhattacharjee, the learned Advocate for the opposite party Nos. 2 and 3 submitted that the complaint case under section 138 of the NI Act was started in the year 1997 and, it is now pending in the Court of the learned Metropolitan Magistrate, 8th Court, Calcutta as Case No. C-282/97. Section 145 of the NI Act was introduced with effect from 6.2.03. Accordingly provisions of section 145 of the NI Act cannot be used in a previously pending case which was started in the year 1997. The general law is that when any new Act or section is introduced, it is always prospective unless it is specifically mentioned in the or in the amendment, that it would have retrospective effect. While introducing section 145 of the NI Act it was not stated therein that it would have retrospective operation. Accordingly, section 145 of the NI Act is prospective and it has no retrospective operation. The learned Magistrate made irregularity by allowing the prayer of complainant to file evidence-on-affidavit of PW.2. In the revision preferred by the accused persons the learned Chief Judge rightly appreciated the scope and object of section 145 of the NI Act and different decisions of the Honble Supreme Court.

(5.) Mr. Bhattacharjee further submitted that every law is prospective unless otherwise directed. In several decisions the Honble Supreme Court as well as Honble High Courts have held that any law irrespective of its classification, whether substantive or procedural, have prospective operation unless it is specifically made therein that the law would have retrospective operation. As the present case was filed sometime in the year 1997, the present case would be governed under the provisions of the old NI Act and section 145 of the NI Act cannot be invoked in this case.

(6.) According to Mr. Bhattacharjee from a short survey of Article 245, Article 247 and Article 248 of the Constitution it becomes apparent that all these articles are couched in the widest possible term "to make any law" that prima facie means prospective as well as retrospective law. In AIR 1962 SC 1753 [LQ/SC/1962/210] (M/s. WRED Co. Ltd. vs. State of Madras) the Supreme Court held that the second corollary of Article 20(1) heralds that no person can be prosecuted for an offence having greater punishment that the punishment which was in vogue when the alleged Act/amendment has taken place. The imprisonment under section 138 was increased from one year to two years by amendment in 2002. The rudimentary principle of interpretation is that a statute is to be read as an organic whole and not in a piecemeal manner. One must have a wholesome view of the enactment. However, enactment is considered to be an organic whole, not in a piecemeal manner as if section 145 will get one interpretation, section 146 will get different and section 138 will have another interpretation. If this principle is projected it boils down that this amended Act of 2002 cannot have any retrospective operation as the amended Act is pregnant with a penal provision whereby the sentence of imprisonment substantially increased from one year to two years.

(7.) Mr. Bhattacharjee also referred to section 143 of the NI Act and contended that by the amendment and introduction of section 143 the procedure of summary trial has been introduced and the Magistrates have been given power to pass a sentence of imprisonment in a trial exceeding one year and an amount of fine exceeding Rs. 5000/-. Though in the summary trial the extent of punishment which can be inflicted there may be one year but, by reason of that it cannot be assumed that the offence under section 138 of the NI Act is punishable with imprisonment for one year when after amendment the punishment has been made to two years. Even if for arguments sake it is considered that sections 138-143 of the NI Act concentrate only on procedural changes than regarding effect of procedural law there are divergent opinions. This is not at all correct to say that procedural law is always retrospective unless made prospective as was observed by the Honble Bombay High Court.

(8.) Mr. Bhattacharjee also submitted that date of commencement of the case is the main petitioner. The date commencement or date of operation is the guiding factor which will indicate an action of the proposed enactment. The constitutional Bench of the Honble Supreme Court in Pratap Singh vs. State of Jharkhand reported in 2005(2) JCC 908 came to a conclusion that the enactment is prospective. The Supreme Court made this observation while considering the effect as well as operation of Juvenile Justice (Care and Protection of Children) Act, 2000. As the alleged offence was completed in the year 1997 it should be guided by the law that was prevailing at the time and complainant cannot take advantage of section 145 of the NI Act and this section has no retrospective effect but, it is prospective in nature.

(9.) In support of his contention Mr. Bhattacharjee placed reliance on several decisions which are as follows: Peacock Industries Ltd. and Ors. vs. Budhrani Finance Ltd. and Ors., 2007(1) Bankmann 25 (Bom), WRED Co. Ltd. vs. State of Madras, AIR 1962 SC 1753 [LQ/SC/1962/210] , Dayal Singh vs. State of Rajasthan, 2004(2) Apex Criminal Cases 696, Nirmal Kanti Roy and Ors. vs. State of WB and Ors., 1998 Supreme (Cr.) 599, Janardhan Reddy vs. State, AIR (38) 1951 SC 124, [LQ/SC/1950/52] Seshavan vs. State, AIR (38) 1951 SC 128, [LQ/SC/1951/3] Garikapati vs. Subbiah Choudhury, AIR 1957 SC 540 [LQ/SC/1957/10] , State of Bombay vs. Vishnu Ramchandra, AIR 1961 SC 307 [LQ/SC/1960/238] , Arjan Singh vs. State of Punjab, AIR 1970 SC 703 [LQ/SC/1968/308] , State of MP vs. Rameshwar Rathod, AIR 1990 SC 1849 [LQ/SC/1990/325] , National Agrl. Co. Op. Mktfg. Fed. vs. UOI, 2003(4) ILD 411(SC), Mohan Mukherjee vs. State and Anr., 1992 C Cr. LR (Cal) 211, Sankar Kumar Bhattar vs. Tehlsildar, AIR 1976 Orissa 103 (DB), Krushna Chandra vs. Coor. Endowments, AIR 1976 Orissa 52 (DB), Biren Pramanik vs. State, 2002 C Cr. LR (Cal) 790, Zila Singh vs. State of Haryana, 2005(26) AIC (SC) 735, Basheer NP Basheer vs. State, 2004(2) Apex Criminal Judgments 454, Vijayalakshmi Rice Mills vs. State of A.P., AIR 1976 SC 1471 [LQ/SC/1976/115] , Mahamed Sayeed vs. Union, AIR 1990 Cal 52 [LQ/CalHC/1989/231] , Rashid Gafoor Parkar, 1985(1) RCR (Cri.) 186 (Bom), State of Haryana vs. Kundan Tec Chand, 1986(2) RCR (Cri) 226 (P and H/DB), Abdul Khader, 1991(1) RCR (Cri.) 524 (Karnataka), State of M.P. vs. Rameshwar Rathod, AIR 1990 SC 1849 [LQ/SC/1990/325] , Pratap Singh vs. State of Jharkhand, 2005(2) JCC 908, Bijendra Singh vs. State of Haryana, 2005(2) Apex Criminal Judgments 71, Md. Rashid Ahmed vs. State of U.P., AIR 1979 SC 592 [LQ/SC/1978/401] , Punjab Tin Supply Co. vs. Central Govt., AIR 1984 SC 87 [LQ/SC/1983/297] , Suresh Kr. Mittal vs. State of W. B., 2001(1) CHN 494, Sanailal Das vs. State of W.B., 2004 C Cr. LR (Cal) 311, and Swastika Sen vs. State, 2003(2) Cal LT 359 (HC).

(10.) I have duly considered the submissions made by the learned Advocates for the respective parties. It appears that the petitioner as complainant filed a complaint under section 138/141 of the NI Act against opposite parties 2 and 3 in the year 1997 and it was registered as case No. C-282/97. The learned Chief Metropolitan Magistrate, Calcutta after taking cognizance transferred the case to the Court of the learned Metropolitan Magistrate, 8th Court, for disposal. After transfer process was issued by the learned Magistrate and the accused persons were examined under section 251 of the Cr. PC 11.4.05 was fixed for examination of the prosecution witnesses and on that date the complainant filed written evidence-on-affidavit as examination-in-chief. On behalf of the accused persons objection was raised on the ground that in a proceeding of 1997 there is no scope of filing written evidence on affidavit as section 145 of the NI Act was introduced with effect from 6.2.03 and, in a pending proceeding the scope of section 145 of the NI Act cannot be invoked. The learned Magistrate rejected the prayer of the accused persons and being aggrieved by the said order, the accused persons preferred a revision before the learned Chief Judge Sessions Court, Calcutta. The learned Chief Judge, City Sessions Court, Calcutta in Criminal Revision No. 116/05 after hearing the respective parties allowed the revision and set aside the order passed by the learned Magistrate and, rejected the evidence-on-affidavit filed by the complainant and directed the complainant to appear in the Court of the learned Magistrate for his examinaion in Court. Challenging the order of the learned Chief Judge the complainant has moved this Court in this revisional application. The only point for consideration in this revisional application is whether provisions of section 145 of the NI Act relating to submission of evidence-on-affidavit can be extended in respect of the criminal proceedings which were pending before the introduction of section 145 of the NI Act. It is well-known that section 145 of the NI Act became effective with effect from 6.2.03.

(11.) The Bombay High Court in the aforesaid decision in Indraprastha Holdings Ltd. vs. Vijay J. Singh (supra) observed that, "section 145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded. It provides that the evidence of the complainant may be given by him on affidavit and on application made by the accused, the Court shall summon and examine the person giving evidence-on-affidavit as to the facts contained therein. Thus, section 145 is purely a rule of procedure. It is obvious that the rule of procedure which is incorporated in section 145 does not affect any vested right of either parties to the complaint." ... While making such observation the learned Single Judge placed reliance over an unreported decision of the Bombay High Court in the matter of KSL Industries Ltd. vs. V. Khandehval in Criminal Writ Petition No. 1222 of 2004 and observed further that, "Thus the law laid down by the Division Bench in the decision of KSL Industries can be summarised as under: (a) the Court dealing with a complaint under section 138 of the said Act of 1881 has an option to take evidence of the witnesses on the side of the prosecution as well as evidence of the accused and the defence witnesses, if any, on affidavit, (b) if the evidence of a witness is taken on affidavit, after an application is made by the other party under sub-section (2) of section 145, it is not necessary to again record examination-in-chief of the witness whose affidavit of examination-in-chief is already filed, (c) if an affidavit is filed under sub-section (1) of section 145 and an application is made under sub-section (2) of section 145 by the other party, the witnesses must be made available for cross-examination by the rival party...........................Closer scrutiny of section 145 shows that the same is intended to ensure that the trial is concluded as expeditiously as possible.........................Section 145 which merely affects the procedure will have to be presumed to be retrospective in its operation and will apply to all complaints pending on 6th February, 2003."

(12.) I do not dispute the point raised by Mr. Bhattacharjee on behalf of the respondent that amendments or statutes when introduced have prospective operation unless it is specifically mentioned in the statute or in the Amending Act or amending section that it would have retrospective operation. In all the decisions cited by Mr. Bhattacharjee it has been held or observed by the Honble Apex Court as well different High Courts that prima facie every legislation is prospective and there is no reason to depart from this rule of interpretation. It has been observed by the Supreme Court that the golden rule of construction is that, in absence of anything in the enactment to show that it is to have retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in litigation at the time when the was passed.

(13.) There is no dispute that every enactment or amendment has prospective operation unless specifically stated in the enactment or amendment that it would have retrospective operation. But the general rule has some exceptions and we should keep in mind that laws are two types viz, substantive and procedural. While considering the scope and object of introduction of any new section or Act it requires consideration the circumstances as well as the object behind introduction of such Act or section. The dominant purpose in construing a statute or amendment of any Act or section is to ascertain the intention of the Parliament behind introduction of such law. The Court has to ascertain the literal meaning and to ascertain it the juxtaposition in which the rule is placed has to be ascertained first, the purposes for which it is enacted and the object which it is required to subserve - observations of the Supreme Court in Lt. Col. Prithi Pal Singh Bedi vs. Union of India, 1982 SCC (Cri.) 642 [LQ/SC/1982/125] .

(14.) Considering the nature of the point involved in this revisional application there is no need to discuss all the decisions cited by Mr. Bhattacharjee in this matter. There are differences between substantive law and procedural law. For example, if a substantive law is changed and punishment is enhanced during the pendency of the trial the amendment would have prospective operation and not retrospective operation. Because, punishment affects liberty of a person and in a pending matter such liberty cannot be curtailed by taking advantage of amended provision of the or section whereby the punishment was enhanced. In civil matters or land or land acquisition matters the amendment and introduction of any new section or introduction of new statute would have prospective operation unless it is specifically mentioned in the Amending Act or statute that would have retrospective operation.

(15.) The amendment in the NI Act in respect of section 138 substituting the imprisonment to two years with effect from 6.2.03 from one year would not operate as retrospective. The subject-matter relating to sentence or fine should always be prospective and enhancement of sentence of imprisonment or fine cannot have retrospective operation as it touches with the persons liberty of the accused. In pending cases, therefore, amendment of section showing change or enhancement of punishment should always be prospective.

(16.) The introduction of section 143 of the NI Act with effect from 6.2.03 cannot have retrospective operation. The analogy as submitted by Mr. Bhattacharjee that, why section 143 of the NI Act should not have retrospective operation if section 145 of the NI Act be treated as having retrospective operation is unacceptable as the same in without reason. It is true that both section 143 and section 145 of the NI Act deal with procedural matters, yet there are differences in the procedure. Section 145 deals with procedure or manner of examination of a witness in trial, whereas section 143 deals with procedure of the case summarily. The manner or approach of procedural methods in these two sections have different consequences. For that reason in section 143 a proviso has been added to make it clear that, if after commencing a trial in a summary way the Magistrate finds 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 after hearing the parties record an order to that effect and would recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the Code of Criminal Procedure. It indicates that, if the Magistrate finds that the case should be tried not summarily but as regular trial, the Magistrate would convert it into a regular trial. This procedure of trial is different from manner of examination of a witness in the regular trial.

(17.) The decisions cited by Mr. Bhattacharjee deal with different types of Acts and consequences of such Acts and its result are different and none of such Acts deals with procedure of examination of witness in a trial. The decision in M/s. West Ramand Electric Distribution Co. Ltd. (supra) deals with Madras Electricity Supply Undertakings. The decision in Janardhan Reddy (supra) deals with powers of Supreme Court under Articles 135 and 136 of the Constitution and this decision has no manner of application in the present matter. Similarly, is the effect of the decision of the Supreme Court in Keshavan Madhava Menon (supra) as it deals with interpretation of statutes and pending proceeding under Press (Emergency Powers) Act. In Garikapati vs. Subbiah (supra) the Supreme Court dealt with its powers under Articles 133, 135 and 136 of the Constitution relating to valuation necessary for appeal to Supreme Court and subsequent changes in law and abolition of Federal Court. There the Supreme Court dealt with right of appeal and the manner when vested right of appeal can be taken away and indicated that it can be done by subsequent enactment, if it so provides expressly or by necessary intendment. It is well-known that institution of suit carried with it the right of appeal and on that background the Supreme Court indicated that it should have retrospective effect. Such decisions or principle of law cannot be applied in the present matter which deals with manner of examination of a witness in a regular trial. Other decisions cited by Mr. Bhattacharjee deal with penal statute or changes in Essential Commodities Act, Income-tax Act, Land Reforms Act, Haryana Municipal Act, NDPS Act, Rice Price Control Order (AP), Imports and Exports (Control) Act, Terrorist and Disruptive Activities (Prevention) Act, Muslim Women (Protection of Rights on Divorce) Act, 1986 etc. These are Acts of different matters having different consequences and such Act or amended sections for their object, purpose and operation cannot have retrospective effect. The changes brought by amendment or introduction of new provisions in the aforesaid Acts are of such nature that it should have always prospective operation unless in the by express provisions or necessary implication either the Parliament or the State Legislature indicated that such Acts and amendments would have retrospective operation.

(18.) The object behind introduction of section 145 of the NI Act should be remembered and we cannot remain oblivious of the situation or the background which prompted the Parliament to make necessary amendment in the NI Act showing certain changes with effect from 6.2.03 and introduction of sections 143 and 145 of the NI Act. It is clear that the changes were made, as the Courts were unable to dispose of huge number of cases pending under section 138 of the NI Act. The Parliament found that sections 138 to 142 were to some extent deficient in dealing with dishonour of cheques. The proposed amendment was made in the for the purpose of speedy disposal of cases relating to dishonour of cheques and for that reason penalty was enhanced and some new schemes were introduced ad even provisions for compounding the offence were made. Even section 143(3) deals with the scheme of disposing trial within six months. The object was to make the procedure less cumbersome.

(19.) Section 145 is a procedural law which lays down the manner of recording evidence of complainant. Now-a-days, we find that several big business concerns, big companies, partnership firms are involved in proceedings under section 138/141 of the NI Act either as complainant or as accused. In respect of big firms or busy concerns it is difficult for the Directors or the Managing Directors or the partners to attend Court to give evidence and the procedure to bring such witnesses in Court for their examination-in-chief causes enormous problem for the Court as such witnesses for their pre-occupation and busy schedule cannot attend Court on different dates leaving their business work or day-to-day affairs in the business. Often it has been found that examination-in-chiefs are not completed in a ,day and even two three days are taken to complete examination-in-chief. Section 145 was introduced to make the procedure more easy and to make it less cumbersome so that in the matters of big companies or big firms or partnership concerns either the Directors or the partners can place their evidence before the Court by affidavit. This procedure does not take away the right of accused to cross-examine such witnesses. Cross-examination is the most effective weapon in the armoury of accused and by introduction of evidence- by-affidavit through section 145 of the NI Act, the Parliament did not curtail the right of accused to cross-examine such witness whose evidence were placed before the Court on affidavit. The section 145 of the NI Act makes it clear that on the application of prosecution or the accused, the Court would summon and examine any person giving evidence on affidavit. It proves that the right of accused to cross-examine the witness has not been taken away by introduction of section 145 and the accused is at liberty to submit before the Court expressing his intention whom he wants to cross-examine whose evidence was taken on affidavit and, if any such application is filed the learned Magistrate would summon such witness to appear in the Court for cross-examination.

(20.) The Bombay High Court not only in Indraprastha Holdings Ltd. (supra) but in other decision namely in Peacock Industries Ltd. vs. Budhrani Finance Ltd. (supra) reiterated the same view. The Division Bench decision of the Bombay High Court in the matter of KSL Industries Ltd. vs. V. Khandelwal (supra) over section 145 of the NI Act has already been discussed while dealing with the principles of law pronounced in Indraprastha Holdings Ltd. (supra).

(21.) It is thus clear that section 145 was introduced by the Parliament with the aim of expediting the trial as quickly as possible. The scheme or the procedure of filing affidavit of complainant and his witness on affidavit as examination-in-chief has not taken away in any manner the right of accused to cross-examine the complainant and his witnesses whose evidence of examination-in-chief on affidavit was filed in Court. Even this section also enables the accused or defence to lay evidence by affidavit. It is purely procedural in nature and it can be utilized in cases which are pending even prior to 6.2.03, the date of making the section 145 effective. The Supreme Court in Shreenath vs. Rajesh reported in AIR 1998 SC 1827 held that, in interpreting any procedural law, where more than one interpretation is possible, the one which curtails the procedure without eluding justice is to be adopted. The procedural law is always subservient to and is in aid to justice. The Amending Act of 2002 introducing certain changes in the NI Act are merely procedural in nature. Such changes were made by the Parliament with the object of ensuring that the procedure in complaints under section 138 of the NI Act becomes less cumbersome and the pending trials as well as new trials be expedited. The language used in section 145 clearly indicates that the legislature had the intention of making this section applicable in respect of complaint cases pending on 6.2.03 and the effect of this section is retrospective.

(22.) In view of the discussions made above I find that the learned Chief Judge, City Sessions Court, Calcutta failed to appreciate the very object and purpose behind the introduction of section 145 of the NI Act and committed an error by observing that section 145 of the NI Act has prospective operation. The learned Metropolitan Magistrate was right by observing that section 145 of the NI Act has retrospective operation. The order of the learned Chief Judge, City Sessions Court, Calcutta being not in accordance with law is set aside.

(23.) The revisional application is accordingly allowed and disposed of in the light of the observations made above. The learned Metropolitan Magistrate, 8th Court, Calcutta is directed to proceed with the trial of Complaint Case No. C-282/97 and to dispose of the same as expeditiously as possible and preferably within six months from the date of communication of this order without granting any undue adjournment to either of the parties. All interim orders passed earlier stand vacated. Revisional application allowed.