2016 (9) TMI 1683 - HC - Indian Laws

Section 145 Negotiable Instruments Act overrides CrPC inquiry requirements for dishonour cheque cases

Trend Bags and Ors. Versus State of West Bengal and Ors.

The Calcutta HC dismissed a petition challenging the requirement for further inquiry under section 202 CrPC before issuing process in a dishonour of ... Dishonour of Cheque - requirment to conduct a further inquiry under section 202 of the Code of Criminal Procedure before issuing process against the accused persons in a case under section 138 of the Negotiable Instruments Act - accused resided beyond the territorial jurisdiction of the Magistrate - HELD THAT:- In Indian Bank Association & Ors. v. Union of India & Ors. [2014 (5) TMI 750 - SUPREME COURT], 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, process be issued and trial conducted for speedy disposal of such cases. Further, subsequent amendment to section 202 Cr.PC will not override the special procedure prescribed under section 145 of the Negotiable Instruments Act in view of the non-obstante clause contained therein which not only overrides the Code but also all subsequent amendments thereto to the extent of its repugnancy unless a contrary intention is expressly evidenced by way of corresponding amendment to the special statute also. Conclusion - The non-obstante clause in section 145 of the Negotiable Instruments Act overrides the procedural requirements of the Code, reinforcing the special procedure for handling cases under section 138. Petition dismissed. ISSUES PRESENTED and CONSIDEREDThe primary issue presented and considered in this judgment was whether the learned Magistrate was required to conduct a further inquiry under section 202 of the Code of Criminal Procedure before issuing process against the accused persons in a case under section 138 of the Negotiable Instruments Act, particularly when the accused resided beyond the territorial jurisdiction of the Magistrate.ISSUE-WISE DETAILED ANALYSISRelevant Legal Framework and PrecedentsThe legal framework primarily involved the Negotiable Instruments Act, particularly sections 138, 143 to 147, and section 145, which allows the complainant to provide evidence by affidavit. The Code of Criminal Procedure, specifically section 202, was also relevant to the issue of whether a further inquiry was necessary before issuing process. The judgment referenced several precedents, including the decision in M/s. Magma Leasing Limited v. The State and Indian Bank Association & Ors. v. Union of India & Ors., which clarified the application of section 145 of the Negotiable Instruments Act.Court's Interpretation and ReasoningThe Court interpreted that the amendments to the Negotiable Instruments Act, particularly section 145, were designed to expedite the trial process by allowing evidence to be submitted via affidavit, thereby dispensing with the need for preliminary deposition as required under sections 200/202 of the Code of Criminal Procedure. The Court emphasized that the non-obstante clause in section 145 overrides the procedural requirements of the Code, including any subsequent amendments to section 202, unless explicitly stated otherwise in a corresponding amendment to the Negotiable Instruments Act.Key Evidence and FindingsThe Court found that the legislative intent behind the amendments to the Negotiable Instruments Act was to ensure the swift and efficient disposal of cases related to cheque dishonor. This intent was supported by the Statement of Objects and Reasons for the amendments, which aimed to streamline procedures and enhance punishments to deter offenders.Application of Law to FactsApplying the law to the facts, the Court concluded that the Magistrate was not required to conduct a further inquiry under section 202 of the Code of Criminal Procedure before issuing process against the accused. The affidavit evidence submitted by the complainant was deemed sufficient for compliance with the procedural requirements, as outlined in section 145 of the Negotiable Instruments Act.Treatment of Competing ArgumentsThe Court addressed the petitioner's argument that a further inquiry was necessary due to the accused residing outside the Magistrate's jurisdiction. However, it dismissed this argument, citing the overriding effect of the special procedure under the Negotiable Instruments Act, which does not necessitate such an inquiry when affidavit evidence is provided.ConclusionsThe Court concluded that the issue raised by the petitioner was not novel and had been settled by previous judgments. It determined that the petition was intended to delay the proceedings and dismissed it accordingly.SIGNIFICANT HOLDINGSThe Court held that section 145 of the Negotiable Instruments Act allows for evidence to be submitted via affidavit, which suffices for both pre-summoning and post-summoning stages, thereby eliminating the need for further inquiry under section 202 of the Code of Criminal Procedure. The Court stated, 'The affidavit and the documents filed by the complainant along with the 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.'The Court established that the non-obstante clause in section 145 of the Negotiable Instruments Act overrides the procedural requirements of the Code, reinforcing the special procedure for handling cases under section 138.The final determination was that the petition was dismissed, and the trial court was directed to proceed with the trial expeditiously and conclude it in accordance with the law.