TaxTMI 
TaxTMI 
2017 (12) TMI 557
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....at facts material on the basis of which the Complaint was laid by the Payee are that the Payee are a duly incorporated company engaged in the business of financing purchase of motor vehicles, consumer durables and machinery on hire purchase secured by hypothecation. On 10.02.2000, the Drawer along with his brother Ashok Rajgardia and father K. L. Rajgardia and Vikas Nahar came to the office of the Payee requesting finance for machinery on hire purchase in the name of his company M/s Radhika Automobiles Pvt. Ltd. After satisfying themselves about the authority and antecedents of the Drawer, the Payee financed a sum of Rs. 28,00,000/- whereon Rs, 10,50,000/- were hire charges aggregating a total sum of Rs. 38,50,000/- in favour of M/s Radhika Automobiles Pvt. Ltd on condition that the Drawer would repay the loan in 35 monthly installments each worth Rs. 1,10,000/- commencing w.e.f. 10.02.2000. On 04.11.2000, the Drawer again visited the office of the Payee and requested finance to purchase two Baleno cars and one Maruti AC Car on hire purchase basis in the name of the company, that is to say, M/s Radhika Automobiles Pvt. Ltd. The Payee on being satisfied that the Drawer had requisite....
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....ble debt. The Drawer alleged that on allegations in the Complaint, the Drawer be summoned and punished for committing an offence under Section 138 Negotiable Instruments Act and Section 420 IPC. The Complaint was filed on 13.11.2000. Evidence in support of the Complaint was recorded on the basis of an affidavit under Section 200 Cr.P.C. read with Section 145 of the Negotiable Instruments Act, a copy of which has been annexed as annexure no. 2 to the affidavit filed in support of the Application. The learned Magistrate by means of the impugned order has proceeded to summon the Drawer for offences punishable under Section 138 Negotiable Instruments Act as well as Section 420 IPC. As the Drawer did not respond to the summons, warrants of arrest were issued by the Magistrate by an order dated 04.10.2004. These proceedings are discernible from a perusal of the order sheet annexed as annexure no. 4 to the affidavit in support of the Application. It is at this stage of proceedings before the Magistrate that the Drawer approached this Court through the instant Application under Section 482 Cr.P.C. filed on 13.12.2004 seeking to quash the Complaint as well as impugned order and ....
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.... the effect that the complainant has not examined himself on oath under Section 200 Cr.P.C. by deposing in the witness box as required by law; rather he has filed his evidence in support of the complaint to serve as a statement under Section 200 Cr.P.C. through an affidavit taking aid of the provisions of Section 145 Negotiable Instruments Act that permit a complainant to do so. It is pointed out by Sri Neeraj Pandey that the provisions of Section 145 Negotiable Instruments Act have been brought in through an amendment by Act No. 55 of 2002 with effect from 06.02.2003 whereas the Complaint was instituted on 13.11.2002, a fact apparent on a bare perusal of the record. Sri Pandey has urged that the provisions of Section 145 Negotiable Instruments Act on the strength of which the Payee's affidavit has been accepted for the complainant's evidence under Section 200 Cr.P.C. are not at all available to the Payee as valid procedure to pursue the complaint before the Magistrate inasmuch as the provisions of Section 145 Negotiable Instruments Act (supra) have been introduced with effect from 06.02.2003 and, therefore, cannot have retrospective operation or apply to complaints pending....
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....ate retrospectively? " The question was squarely answered vide paragraphs-32 to 35 of the report which reads thus: 32. Next I would like to consider the question whether the provisions of Section 145 of the Act, operate prospectively or retrospectively. This question is essentially raised in Writ Petition No.1659 of 2005 and Writ Petition No.2063 of 2005. Mr.Lopo Singh, learned Counsel for the petitioner, based his arguments on the judgment of the Supreme Court in Hitendra Vishnu Thakur and Ors. v. The State of Maharashtra and Ors. 1994 Supreme Court Cases (Cri.) 1087. In the light of the law laid down by the Supreme Court in that case it was submitted that the amended provisions of Section 145 clearly affect substantive rights of the accused contained in Chapter XX and XXI and Section 461 of the Code as well as the rights of accused under various provisions of the Evidence Act relating to examination of the witnesses. 33. On the other hand Mr.Aney, learned senior counsel appearing for the complainant in that case submitted that this question is no longer res integra and it has been answered by this Court in M/s.Indraprastha Holdings Ltd. v. Shri Vijay J.Shah a....
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....apter XX and XXI or Section 461 of the Code would show that there is nothing contained therein that could be said to amount substantive right. Chapter XX deals with the trial of summons case whereas Chapter XXI is concerned with summary trials. Both chapters are in fact concerned with the procedure to be followed in summons or summary trials. The provisions contained in these chapters did not indicate any substantive right. Moreover, the provisions of Section 145 begin with a non-obstante clause carving out exception to the provisions of the Code. Therefore, even if it is accepted that any of the provisions contained in Chapter XX and XXI or Section 461 creates substantive right, the effect of non-obstante clause is to exclude anything adverse that may be contained in the Code while interpreting and implementing the amended provisions of Section 145. The Code of Criminal Procedure and the Evidence Act are general laws and the rights created thereunder cannot be termed as substantive rights or vested rights of substantive nature causing any prejudice whatsoever to the accused by the Amending Act of 2002 and in particular Section 145. A bare perusal of Section 145 show that both the ....
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....990 (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: "The presumption against retrospection does not apply to legislation concerned merely with matter....
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....ng and sustaining the credibility of commercial transactions and to ensure that transactions through this particular Negotiable Instrument, that is, a cheque becomes a dependable way of transacting business. The provision was rigorously used with proliferation of litigation by way of complainants under Section 138 of the said Act. It was felt that the procedure provided under the Code of Criminal Procedure for recording of evidence under Sections 200 and 202 Cr.P.C. obliging a complainant to tender evidence on oath in the dock was not in keeping with the special context of a prosecution under Section 138 Negotiable Instruments Act. It was, therefore, that the Parliament with the object of ensuring that the procedure in a complaint under Section 138 Negotiable Instruments Act becomes less cumbersome, and, pending trials as well as new trials are expedited, introduced the provisions of Section 143 to 147 to the existing Chapter XVII of the said Act. Section 145 of the Negotiable Instruments Act is being quoted in extenso: 145. Evidence on affidavit.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the c....