Jammu & Kashmir High Court
Manzoor Ahmed Khan vs Shri S. M. Khatotra on 19 July, 2017
Author: Sanjay Kumar Gupta
Bench: Sanjay Kumar Gupta
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Case:-Petition u/s 561-A Cr.P.C. No.248/2014
Date of order:19.07.2017
Manzoor Ahmed Khan Vs. Shri S. M. Khatotra
Coram:
Hon'ble Mr. Justice Sanjay Kumar Gupta
Appearing counsel:
For the Petitioner(s) : Mr. C. M. Koul, Advocate.
For the Respondent(s): Mr. Manohar Lal, Advocate.
i) Whether approved for reporting in Press/Journal/Media : Yes/No
ii) Whether to be reported in Digest/Journal : Yes/No
1. This petition preferred under Section 561-A Cr.P.C.
seeks quashing of order dated 30.10.2013 passed by the Court of learned Judicial Magistrate, 1st Class, Jammu in complaint under Section 138 of the Negotiable Instrument Act in case titled 'S. M. Khatotra Vs. Manzoor Ahmed Khan' holding that till the matter is finally set at rest by Hon'ble High Court about application of Section 145 amended of Negotiable Instrument Act to the State of J&K till then it cannot be said that the statement was to be rejected or taken off the record; and order dated 02.06.2014 pursuant to which the Criminal Revision No.67 titled 'Manzoor Ahmed Khan vs. S. M. Khatotra' came to be dismissed by the learned Principal Sessions Judge, Jammu, being not maintainable on the ground that the order impugned therein was an interlocutory order.
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2. Learned counsel for the petitioner submitted that the complaint titled 'S. M. Khatotra Vs. Manzoor Ahmed Khan' came to be filed under Section 138 of the Negotiable Instrument Act read with Section 420 RPC. The said complaint is at present pending disposal before the Court of learned Munsiff, Jammu. It is stated that the cheques, on the basis of which the aforementioned complaint came to be filed by the respondent, were never issued with a view to liquidate any of the pecuniary claims of the respondent. In fact, the cheques came to be issued as a security in the business that the petitioner and the respondent would do in dry fruits etc. That during the course of proceedings in the said complaint, the respondent submitted his deposition on affidavit. It is stated that against the recording of the statement by the respondent before learned trial Court by affidavit, objections came to be filed. An application came to be filed by the petitioner for striking down of the record, the statement furnished by the complainant on affidavit before the learned trial Court on the ground that the provisions pursuant to which the evidence could be adduced by way of affidavit have not been extended to the State of Jammu and Kashmir.
3. Learned counsel for the petitioner further submitted that the complainant/respondent appears to have 561-A Cr.P.C. No.248 of 2014 Page 2 of 9 filed a statement on affidavit purportedly under Section 145 of the Negotiable Instrument Act. That the bare perusal of the said provisions makes it abundantly clear that the evidence of the complainant can be given on affidavit notwithstanding the provisions of the Code of Criminal Procedure, 1973 (2 of 1974), a Code which has no application to the State of Jammu and Kashmir. The said Section is an exception and has been carved out in disregard to 1973 (2 of 1974) for the trial of complaints. The said Section does not speak of the Code of Criminal Procedure Svt. 1989 (1933 AD) which regulates the trial of complaints within the State of Jammu and Kashmir, therefore, the said Section cannot be said to be either applicable or operative regardless of the provisions of the Code of Criminal Procedure Svt. 1989 (1933 AD). Section 145, thus, has no applicability and the statement made by the complainant on affidavit before the trial Court cannot be considered in law. The learned trial Court after hearing both the sides, vide order dated 30.10.2013 returned a finding to the effect that till the matter is finally set at rest by Hon'ble High Court about application of Section 145 amended of Negotiable Instrument Act to the State of J&K till then it cannot be said that the statement was to be rejected or taken off the record. That the 561-A Cr.P.C. No.248 of 2014 Page 3 of 9 criminal revision filed against order dated 30.10.2013 came to be dismissed being not maintainable on the ground that the same was against interlocutory order. With afore mentioned submissions, learned counsel prays for allowing the instant petition and quashing of the impugned orders.
4. On the contrary, learned counsel for the respondent submitted that cheques were issued by the petitioner to liquidate the money to the respondent, which the petitioner had taken from the respondent. In so far as applicability of Section 145 of Negotiable Instrument Act is concerned, it is submitted that the entire Negotiable Instrument Act, 1881 has been extended to the State of Jammu & Kashmir vide Act No.62 of 1956 and after such amendment, each and every provisions of said Act has been made applicable to the State of Jammu & Kashmir including Section 145. The evidence of the complainant may be given by him on an affidavit, as such, keeping in view the wording of above Section, question of extending the operation of Central Criminal Procedure Code to the State of J&K does not arise at all, as such, the petition filed by the petitioner is only a delaying tactics and is required to be dismissed. It is submitted that the petitioner is not allowing the complaint to be processed under law 561-A Cr.P.C. No.248 of 2014 Page 4 of 9 and that the Principal Sessions Judge has rightly dismissed the revision petition as not maintainable in the eye of law. Learned counsel prays for dismissal of the instant petition in limine.
5. Heard learned counsel for the parties and gone through the case file minutely.
6. For a proper appreciation of the issue in controversy it would be necessary to examine the relevant legal provisions and to ascertain the object and its reasons for which those provisions were brought into existence in Act and amended from time to time.
7. Chapter XVII of Negotiable Instruments Act deals with procedure for filing of complaint and procedure to be adopted by court in trying the complaint.
8. The Negotiable Instruments Act was amended first by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new chapter XVII was incorporated for penalties incase of dishonor of cheque due to insufficiency of funds the account of drawer of cheque. These provisions were incorporated with a view to encourage the culture of use cheques and enhancing the credibility of instrument. The provisions of sections 138-142 of Act was found deficient, because courts were unable to dispose of cases expeditiously in time bound manner , so certain amendments were made in provision from 561-A Cr.P.C. No.248 of 2014 Page 5 of 9 time to time in relevant provisions for speedy trial of such cases. So another amendment in provisions was made by Amendment Act 2002 for speedy disposal of cases as numerous cases were pending under 138 of N.I.Act.
9. Section 145 of N.I. Act reads as under :-Section 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.
10. The counsel for accused has argued that in this Section, there is reference of Central Code of Criminal Procedure and not of State, so Magistrate was not right in allowing the complainant to give his examination in chief by way of affidavit.
11. In order to resolve controversy raised in case, it is relevant to narrate the relevant provision of law by virtue of which N I Act has made applicable to State of Jammu and Kashmir. The said Act is called THE JAMMU AND KASHMIR ( EXTENSION OF LAWS) ACT 1958. Its section 2 and 3 are relevant, these read as under ;-
"Section -2. Extension and amendment of certain laws. (1) The Acts and Ordinance mentioned in the Schedule and all rules, orders and 561-A Cr.P.C. No.248 of 2014 Page 6 of 9 regulations made there under are hereby extended to, and shall be in force in, the State of Jammu and Kashmir.
(2) With effect from the commencement of this Act, the Acts and Ordinance mentioned in the Schedule shall be amended as specified therein.
Section 3. Construction of references to laws not in force in Jammu and Kashmir. Any reference in any Act or in the Ordinance mentioned in the Schedule to a law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State."
12. Bare perusal of these two Sections, it is evident that in terms of Section 2 of Act, all Acts and Ordinance mentioned in the Schedule and all rules, orders and regulations mentioned in schedule shall be applicable to Jammu and Kashmir State; and secondly in terms of section 3 of Act, any reference in any Act or in the Ordinance mentioned in the Schedule to a law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law, if any, in force in that State.
13. The Negotiable Instrument Act is in the schedule of this Act. So argument of counsel for petitioner that reference of Code of Criminal procedure 1973 ( 2 of 1974 ) in Section 145 of N.I. Act ,which is Central Act cannot construed as Code of Criminal Procedure Svt 1989, does not hold good.
14. Further in case titled "Indian Bank Association and Others v Union of India 2014(5) SCC 590, it is held as under :-
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"Debt, Financial and Monetary Laws- Negotiable Instruments Act, 1881- Ss. 143 to 147 and 138- cheque dishonour cases- Directions issued for expeditious disposal of- Objectives of Amendment Act, 2002- Fulfilment of- In order to have uniform practice in dealing with cases of dishonour of cheques, and to achieve objectives of speedy summary trial in view of amended provisions of NI Act viz. Ss. 143 to 147, held, amended provisions must be given effect to in letter and spirit- Held, Court has option of accepting affidavits of complainant and other witnesses instead of examining them in the court, for their examination-in-chief -However, witnesses to the complaint and the accused must be available for cross- examination as and when there is direction to this effect by the court- Constitution of India- Arts. 21, 32 and 142 - Crim inal Procedure Code, 1973, Ss. 262 to 264 and 202 to 204.
Directions
23. Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases under Section 138 of the Negotiable Instruments Act, for which the following directions are being given :-
23.1 Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.
23.2 The MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. The Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice on the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.
23.3 The Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, the Court may pass appropriate orders at the earliest. 23.4 The Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice under Section 251 Cr.P.C. to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused under Section 145(2) for re-calling a witness for cross-examination. 23.5 The Court concerned must ensure that examination-in-
chief, cross-examination and re-examination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses instead of examining them in the Court. The witnesses to the complaint and the accused must be available 561-A Cr.P.C. No.248 of 2014 Page 8 of 9 for cross-examination as and when there is direction to this effect by the Court.
24. We, therefore, direct all the Criminal Courts in the country dealing with Section 138 cases to follow the above- mentioned procedures for speedy and expeditious disposal of cases falling under Section 138 of the Negotiable Instruments Act. The writ petition is, accordingly, disposed of, as above."
15. Law are formulated by two modes, one is called direct way when Parliament or State Legislature made a law or amends the existing law. Second mode is indirect mode, when High Court or Apex Court gives interpretation of law already existing by one way or other.
16. In terms of article 141 of Constitution of India, law declared by Supreme Court shall be binding on all Courts within territory of India. The directions given in above citation, clearly empowers the Court for accepting affidavits of the witnesses as examination-in-chief instead of examining them in the Court.
17. In view of the above discussion, this petition merits dismissal and the same is accordingly dismissed.
( Sanjay Kumar Gupta ) Judge Jammu, 19.07.2017 *Narinder* 561-A Cr.P.C. No.248 of 2014 Page 9 of 9