TaxTMI 
TaxTMI 
2005 (9) TMI 668
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....2001 in the Court of the learned Additional Chief Metropolitan Magistrate, 3rd Court at Mumbai. Process was issued on the complaint. In the said complaint, the applicant filed an affidavit of evidence on 6th May, 2004. Thereafter, an application was made by the respondent No. 1 under Section 145(2) of the said Act of 1881. The said Application came to be rejected by order dated 26th October, 2004. A Revision Application was preferred by the respondent No. 1 for challenging the said order. By Judgment and Order dated 12th April, 2005, the Revision Application was allowed by the learned Additional Sessions Judge. The learned Additional Sessions Judge held that as the Amending Act was brought into force on 6th February, 2003 i.e. after the date on which the complaint was filed, the Amended Act will apply prospectively unless otherwise made enforceable retrospectively. Therefore, the learned Additional Sessions Judge directed the learned Trial Judge to follow the procedure which was prevailing on the date of filing of the complaint. 4. The learned Counsel appearing for the applicant has placed reliance on various decisions of the Apex Court. The learned Counsel for the applicant submi....
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....ime bound manner in view of the procedure contained in the Act . (Emphasis supplied) Clause 2 takes a note of the fact that large number of cases are reported to be pending under Sections 138 to 142 of the said Act of 1881 in various Courts in the country. Clause 5 reads thus : 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. (Emphasis supplied) The object of the Amending Act seems to be to ensure that cases under Section 138 are disposed of expeditiously in a time bound manner. The another object seems to be to make the procedure less cumbersome. In the present case, we are concerned with Section 145 which was brought on the statute book by virtue of the Amending Act. Section 145 reads thus : 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, su....
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....e laid down in the unamended Code. In paragraph No. 4 of the said decision the Apex Court held thus : (4) The question that arises for decision is whether to a pending prosecution the provisions of the amended Code have become applicable. There is no controversy on the general principles applicable to the case. No person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed for the time being by or for the Court in which the case is pending and if by an Act of Parliament the mode of procedure is altered he has no other right than to proceed according to the altered mode. See Maxwell on Interpretation of Statutes on p.225; Colonial Sugar Refining Co. Ltd. v. V. Irving, 1905 AC 369 (A). In other words a change in the law of procedure operates retrospectively and unlike the law relating to vested right is not only prospective. (Emphasis supplied) Another decision of the Apex Court will be relevant which is , Gurbachan Singh v. Satpal Singh and Ors. One of the questions before the Apex Court in the said decision was whether Section 113(A) of the Indian Evidence Act, 1872 which was brought on statute book by Act 46 of....
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....in its application, should not be given an extended meaning and should be strictly confined to its clearly defined limits. (ii) Law relating to forum and limitation is procedural in nature, whereas law relating to right of action and right of appeal even though remedial is substantive in nature. (iii) Every litigant has a vested right in substantive law but no such right exists in procedural law. (iv) A procedural statute should not generally speaking be applied retrospectively where the result would be to create new disabilities or obligations or to impose new duties in respect of transactions already accomplished. (v) A statute which not only changes the procedure but also creates new rights and liabilities shall be construed to be prospective in operation, unless otherwise provided, either expressly or by necessary implication. It cannot be disputed that Section 145 is a purely procedural provision and the same does not affect any substantive rights of the parties. The said provision does not create any new offence or any new liability. There is nothing in the Amending Act to indicate that the provisions therein were intended to apply only prospectively. Thus, the Secti....