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Learned counsel Mr. Ashok Gaur submits that in a recent judgment in case of M/s. Mandvi Co-operative Bank Ltd. Versus Nimesh B. Thakore reported in JT 2010 (1) SC 259, the Hon'ble Apex Court has categorically held that provisions of Section 145 of the N.I. Act override the provisions of the Code of Criminal Procedure. The rights of the accused are otherwise protected at the time of trial in view of provisions of Section 145(2) of the N.I. Act. The Court further held that provisions of Sections 145 and 146 provide major departure from the principles of Evidence Act so as the provisions of the Cr.P.C. The provisions of Sections 142 to 147 lay down a kind of Special Code for the trial of offences under the Chapter XVII of the N.I. Act. This is to avoid inordinate delay which occurs in the regular process of the criminal trial. The contention of learned counsel is accordingly to hold that before issue of process, complainant and his witness(s) can be examined on affidavit.

I have considered the rival submissions of the parties and perused the record carefully.

The two questions framed are otherwise interlinked, thus are taken together for its answers. The Negotiable Instruments Act was amended with certain objects and has been elaborately discussed by the Hon'ble Apex Court in the case of M/s. Mandvi Co-op Bank Ltd. (supra). The departure from the provisions of the Evidence Act, the Code of Criminal Procedure to the extent indicated under Sections 142 to 147 was with the purpose and objects taken note of while bringing two amendments. First amendment was brought by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 and second by the Negotiable Instruments (Amendment & Miscellaneous Provisions) Act, 2002. Sections 138 to 142 were inserted in Chapter XVII of the N.I. Act by the first amendment. By the second amendment of 2002, Sections 143 to 147 were inserted besides changes in the existing provisions under Section 138 to 142 of the N.I. Act. Section 145 of the N.I. Act makes it possible for the complainant to give his evidence on affidavit and at the same time, Section 146 of the N.I. Act provided banks slip to be prima facie evidence of certain facts. This was to depart from the provisions of the Indian Evidence Act and Code of Criminal Procedure. The object behind the amendments have been taken note of by the Hon'ble Apex Court in case of M/s. Mandvi Co-op Bank Ltd. (supra) while giving interpretation of the provisions of Section 145 of the N.I. Act apart from other provisions of the Act and taking note of the objects following observations have been made in Paras 16 and 17, which are quoted thus:-

In reference to the aforesaid para, judgment in case of Panakjbhai Nagjibhai Patel (supra) and also judgment in case of Radhey Shyam Garg (supra) as decided by the Delhi High Court and upheld by the Honble Apex Court are required to be seen. Perusal of the aforesaid two judgments makes it clear that judgment in case of Prakash Chand (supra) cannot hold field. For clarity, it is necessary to mention that Section 145 of the N.I. Act is enabling provision for the complainant as the word may has been used for his evidence on affidavit. It is not mandatory that complainant has to give his evidence on affidavit only. However, when the complainant chooses to give his evidence on affidavit during the course of enquiry, trial and or other proceeding, it cannot be said that such evidence on affidavit can be allowed during the course of trial alone. It is a settled law that no word of statutory provision can be left out for the purpose of giving interpretation. The word enquiry used under Section 145 gets no meaning if evidence by the complainant on affidavit is not allowed before issuance of process as per Section 204 of Cr.P.C. If the intention of the legislature would have been that evidence by the complainant on affidavit can be given during the course of trial alone, then there was no reason to insert words enquiry and other proceeding in Section 145 of N.I. Act. Thus, in view of the aforesaid also, the argument of learned counsel for petitioner cannot be accepted or if we accept the argument, then Section 142 of the N.I. Act cannot be accepted in the manner interpreted by the Honble Apex Court in case of Panakjbhai Nagjibhai Patel (supra). The outcome of the discussion made above is that Section 145 of the N.I. Act is having overriding effect on the provisions of the Code of Criminal Procedure providing contrary procedure for the complainants evidence at the stage of enquiry, trial and other proceeding. Sections 4 & 5 of the Cr.P.C. cannot be given narrow interpretation otherwise the very purpose and object of bringing amendment under Sections 142 to 147 of the N.I. Act will frustrate as otherwise elaborately discussed by the Honble Apex Court in case of M/s. Mandvi Co-op Bank Ltd. (supra).
In view of discussion made in reference of the provisions of the Negotiable Instruments Act as well as Code of Criminal Procedure, I am of the opinion that Sections 142 to 147 of the Negotiable Instruments Act have to be given effect and any provision contrary in the Code of Criminal Procedure cannot have overriding effect. The effect of the provisions of Sections 142 to 146 of the N.I. Act have been dealt with by Delhi High Court as well as Hon'ble Apex Court in the cases of Radhey Shyam Garg and M/s. Mandvi Co-op Bank Ltd. (Supra) wherein it has also been held that Sections 142 to 146 will attract to the trial in a complaint maintained pursuant to Section 190 of the Code of Criminal Procedure and it departs from the procedure contrary given in the Code of Criminal Procedure.