REPORTABLE

THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.                 OF 2010 [Arising out of SLP (Crl.) No.3915/2006]

M/S. MANDVI CO-OP BANK LTD.            ……….Appellant

VERSUS

NIMESH B. THAKORE             ……….Respondent

W I T H

CRIMINAL APPEAL NO(S)._______OF 2010 [Arising out of SLP (Crl.) No(s). 4760/2006, 5689/2006, 1106/2007,  6442/2007, 6443/2007 and 6703/2007]

J U D G M E N T

AFTAB ALAM, J.

1. Leave granted

2. In these appeals we are required to consider the special provisions laid  

down by section 145 of the Negotiable Instruments Act, 1881 (‘the Act’,  

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hereinafter) for a dishonoured cheque trial and to consider how far certain  

assertions  made  by  the  accused  are  in  accordance  with  the  provisions  

contained in the two sub-sections of that section.

3. The High Court had before it  a  large number of writ  petitions and  

applications under section 482 of the Code of Criminal Procedure. Most of  

those petitions were filed on behalf of the accused but a few were also at the  

instance of the complainants. On the basis of the grievances made and reliefs  

prayed  for  in  those  petitions  the  High  Court  framed  the  following  two  

questions as arising for its consideration:

“ (A) Whether sub-section (2) of section 145 of the Negotiable  Instruments  Act,  1881,  (for  short,  "the  Act")  confers  an  unfettered right on the complainant and the accused to apply to  the court seeking direction to give oral examination-in-chief of  a person giving evidence on affidavit,  even in respect  of the  facts stated therein and that if such a right is exercised, whether  the court is obliged to examine such a person in spite of the  mandate of section 145(1) of the Act?

(B) Whether  the  provisions  of  section  145  of  the  Act,  as  amended  by  the  Negotiable  Instruments  (Amendment  and  Miscellaneous Provisions) Act, 2002, (for short "the amending  Act of  2002") are applicable to the complaints under section  138 of the Act pending on the date on which the amendment  came into force? In other words, do the amended provisions of  section 145(1) and (2) of the Act operate retrospectively? ”

4. Answering the questions after a detailed and careful consideration  

of  all  the relevant  provisions  and earlier  decisions of  courts,  the High  

Court held that the person (complainant or his witness) giving evidence  

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on  affidavit  may  be  summoned  by  the  court  for  putting  questions  as  

envisaged under section 165 of the Evidence Act (vide paragraph 24 of  

the judgment). He would also be summoned on an application made by  

the accused but the right of the accused is limited to cross-examination of  

the witness. In terms of section 145(2) the accused can undoubtedly cross-

examine a person whose evidence is given on affidavit but the accused  

cannot insist that the witness, on coming to court, should first depose in  

examination-in-chief even in respect of matters which are already stated  

by him on affidavit (vide paragraph 25 of the judgment). The High Court  

further explained that for the prosecution the occasion to summon any of  

its witnesses who have given their evidence on affidavit may arise in two  

ways. The prosecution may summon a person who has given his evidence  

on affidavit and has been cross-examined for “re-examination”. This right  

of the prosecution, the High Court observed, was not in dispute before it.  

The prosecution may also have to summon a witness whose evidence is  

given on affidavit in case objection is raised by the defence regarding the  

validity and/or sufficiency of proof of some document(s) submitted along  

with the affidavit. In that event the witness may be summoned to appear  

before the court to cure the defect and to have the document(s) properly  

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proved by following the correct  legal  mode (vide paragraph 26 of the  

judgment).

5. The High Court then considered the claim of the accused that any  

evidence in defence, like the complainant’s evidence, may also be given  

on affidavit. It upheld the claim observing as follows:

“….Merely because, section 145(1) does not expressly permit  the  accused  to  do  so,  does  not  mean  that  the  Magistrate  cannot allow the accused to give his evidence on affidavit by  applying the same analogy unless there is just and reasonable  ground to refuse such permission. There is no express bar on  the accused to give evidence on affidavit either in the Act or  in  the  Code………I  find  no  justified  reason  to  refuse  permission to the accused to give his evidence on affidavit  subject to the provisions contained in sections 315 and 316 of  the Code.”  

6. Coming then to the question (B), the High Court had no difficulty  

in holding that the provisions of sub-sections (1) and (2) of section 145  

were not substantive but only procedural in nature and, therefore, those  

provisions would be applicable to the cases pending on the date they came  

into force.

7. Apart from considering the two questions the High Court also laid  

down, on the request of the parties, a number of guidelines (vide sub-

paragraphs (a) to (r) of paragraph 45 of the judgment) in regard to the  

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procedure  that  the  trial  court,  the complainant  and the  accused should  

follow in a dishonoured cheque trial on a complaint made under section  

138 of the Act. We may have to refer to some of those guidelines later, at  

an appropriate place in this judgment.

8. The High Court judgment has given rise to these seven appeals, in  

which the following three issues arise for consideration by this court:

1. The extent of the right of the accused under section 145(2) of the  

Act:  whether  the  right  of  the  accused  is  limited  to  cross-

examination of any person giving evidence on affidavit or is it open  

to the accused to  insist  that  notwithstanding the evidence earlier  

given on affidavit, on coming to the court the complainant or his  

witness should first give deposition in examination-in-chief before  

being  cross-examined  by  him?  (appeals  arising  from  SLP  (Crl.)  

No.4760/2006, SLP (Crl.) No.5689/2006, SLP (Crl.) No.1106/2007,  

SLP  (Crl.)  No.6442/2007,  SLP  (Crl.)  No.6443/2007,  SLP  (Crl.)  

No.6703/2007)

2. Whether the provisions of sub-sections (1) and (2) of section 145 of  

the Act would apply to proceedings that were pending on February 6,  

2003, the date on which those provisions were inserted in the Act?  

(appeal arising from SLP (Crl.) No.4760/2006).

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3. Whether  the  right  to give evidence on affidavit  as  provided to the  

complainant under section 145(1) of the Act is also available to the  

accused? (appeal arising from SLP (Crl.) No.3915/2006)

9. For  a  proper  appreciation  of  the  issues  it  would  be  necessary  to  

examine the relevant legal provisions and to ascertain the object and reasons  

for  which  those  provisions  were  brought  into  existence  by  making  

amendments  in  the  Negotiable  Instruments  Act,  1881.  The  Negotiable  

Instruments  Act  was  amended  first  by  the Banking  Public  Financial  

Institutions and Negotiable Instruments Laws (Amendment) Act, 1988  

and  a  second  time  by  the  Negotiable  Instruments  (Amendment  and  

Miscellaneous  Provisions)  Act,  2002.  The  first  amendment  inserted  

Chapter XVII in the Act, comprising sections 138 to 143. Section 138 made,  

for the first time in the legislative history of the country, the issuance of a  

cheque by any person in discharge of any debt or liability owed by him to its  

holder,  that  was  not  honoured by the  banker  because  of  insufficiency of  

funds in the account, a penal offence for the drawer that would make him  

liable to punishment with imprisonment that might extend to one year (now,  

two years after the second amendment with effect from February 6, 2003) or  

with fine that might extend to twice the amount of the cheque or both; the  

four clauses of the proviso then laid down the preconditions to attract the  

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section,  as  safeguards  for  the  honest  drawer.  Section  139  created  a  

presumption  (rebuttable!)  that  the  cheque  was  issued  by  the  drawer  in  

discharge of any debt or liability owed by him to its holder. Section 140  

provided that it would not be open to the accused in a prosecution under  

section 138 to take the plea that when he issued the cheque he had no reason  

to  believe  that  on  presentation,  the  cheque  may  be  dishonoured  for  the  

reasons stated in that section. Section 141 dealt with offences by companies.  

Section 142 laid down the conditions subject to which alone the court would  

take cognizance of any offence punishable under section 138 of the Act.

10. The statement of objects and reasons appended to the bill explaining  

the provisions of the new chapter stated as follows:

“This clause [clause (4) of the Bill] inserts a new Chapter XVII  in  the  Negotiable  Instruments  Act,  1881.  The  provisions  contained in the new Chapter provide that where any cheque  drawn by a person for the discharge of any liability is returned  by the bank unpaid for the reason of the insufficiency of the  amount of money standing to the credit of the account on which  the  cheque  was  drawn or  for  the  reason  that  it  exceeds  the  arrangements  made  by  the  drawer  of  the  cheque  with  the  bankers for that account,  the drawer of such cheque shall  be  deemed to have committed an offence. In that case, the drawer,  without prejudice to the other provisions of the said Act, shall  be punishable with imprisonment for a term which may extend  to one year, or with fine which may extend to twice the amount  of the cheque, or with both.

The provisions have also been made that to constitute the  said offence-

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(a) such cheque should have been presented to the bank within  a period of six months of the date of its drawal or within the  period of its validity, whichever is earlier; and  

(b) the payee or holder in due course of such cheque should  have made a demand for the payment of the said amount of  money by giving a notice, in writing, to the drawer of the  cheque within fifteen days of the receipt of the information  by him from the bank regarding the return of the cheque  unpaid; and

(c) the drawer of such cheque should have failed to make the  payment of the said amount of money to the payee or the  holder in due course of the cheque within fifteen days of the  receipt of the said notice.

It has also been provided that it shall be presumed, unless  the contrary is proved, that the holder of such cheque received  the cheque in the discharge of a liability. Defences which may  or may not be allowed in any prosecution for such offence have  also  been  provided  to  make  the  provisions  effective.  Usual  provision  relating  to  offences  by  companies  has  also  been  included  in  the  said  new  Chapter.  In  order  to  ensure  that  genuine and honest bank customers are not harassed or put to  inconvenience, sufficient safeguards have also been provided in  the proposed new Chapter. Such safeguards are-

(a) that no court shall take cognizance of such offence except  on a complaint, in writing, made by the payee or the holder  in due course of the cheque;

(b) that such complaint is made within one month of the date on  which the cause of action arises; and

(c) that no court inferior to that of a Metropolitan Magistrate or  a  Judicial  Magistrate  or  a  Judicial  Magistrate  of  the  first  class shall try any such offence.”   

11. The speech of the Minister of Finance on December 2, 1988 in course  

of the debate on the Bill in the Lok Sabha tells us that Chapter XVII was  

inserted in the Act, in light of the Report submitted in the year 1975 by the  

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Committee on Banking Laws headed by Dr. Rajamannar. It appears that in  

course  of  the  debate  some  members  had  expressed  the  view  that  the  

provisions of Chapter XVII sought to be inserted in the Act, contained very  

abnormal, rather very dangerous provisions, in that a kind of civil liability is  

supposed to be converted into a kind of criminal act which would have far  

reaching consequences. Dispelling the apprehensions of those members the  

Minister  pointed out that the proposed amendments  were along the same  

lines  as  the  law prevailing  in  other  countries  such as  the  UK, the  USA,  

Belgium, Portugal,  Argentina,  etc.  Further,  in regard to the object  of the  

provisions, the Minister stated as follows:

“In fact,  the whole purpose of bringing about this provision is   to  make the  drawing of  cheque a regular  mode of  payment.  Unfortunately, today if a cheque is given to a party, they will  not consider it a sufficient means of payment, they will insist  that unless the cheque is encashed, they will not take that as a  kind of payment made.”

                                                          (emphasis added)

12. The Minister then elaborated on the safeguards provided in the law  to  

save an honest drawer from coming under the rigours of the section due to  

any bona fide mistake and finally went on to say as follows:  

“But in spite of time for payment and all other provisions that   are made, if the party is not able to make good the amount of   money which he owes to a particular party and in spite of the   notice also he does not act, the conclusion is inescapable that   he will be prosecuted, legal action will have to be taken. It is  for the court to take a decision, whether he be imprisoned for  

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one year, or double the amount that would be paid as fine or  both things will have to be taken together. Ultimately, it is for  the court to take a decision. But these are the provisions which  have been provided for so that the parties drawing the cheques   are  careful  enough  to  see  that  there  are  enough  resources   available in their bank account and if a cheque is drawn, it will   not be returned.”

                                                                                    (emphasis added)

13. The provisions of the newly inserted Chapter XVII, on coming into  

force with effect from April 1, 1989, brought in a veritable deluge of cases  

in the criminal court system. In the metropolitan cities and the commercial  

centres  of  the  country,  it  almost  appeared  that  the  main  function  of  the  

Magistrate’s court was to recover monies on behalf of parties on the wrong  

end of the commercial  transactions that had gone sour. Complaints  under  

section 138 of the Act came to be filed in such large numbers that it became  

impossible for the courts to handle them within a reasonable time and it also  

had a highly adverse effect on the court’s normal work in ordinary criminal  

matters. A remedial measure was urgently required and the legislature took  

action  by  introducing  further  amendments  in  the  Act  by  the  Negotiable  

Instruments  (Amendment  and  Miscellaneous  Provisions)  Act,  2002.  The  

2002 amendment inserted in the Act for the first time sections 143 to 147  

besides bringing about a number of changes in the existing provisions of  

sections 138 to 142. Section 143 gave to the court the power to try cases  

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summarily;  section  144  provided  for  the  mode  of  service  of  summons;  

section 145 made it  possible for the complainant to give his evidence on  

affidavit;  section 146 provided that the bank’s slip would be  prima facie  

evidence of certain facts and section 147 made the offences under the Act  

compoundable.

14. The statement of objects and reasons appended to the bill stated as  

follows:

“The Negotiable Instruments  Act,  1881 was amended by the  Banking,  Public  Financial  Institutions  and  Negotiable  Instruments  Laws  (Amendment)  Act,  1988  wherein  a  new  Chapter  XVII  was  incorporated  for  penalties  in  case  of  dishonour  of  cheques  due  to  insufficiency  of  funds  in  the  account  of  the  drawer  of  the  cheque.  These  provisions  were  incorporated  with  a  view to  encourage  the  culture  of  use  of  cheques and enhancing the credibility of the instrument.  The  existing  provisions  in  the  Negotiable  Instruments  Act,  1881,  namely, sections 138 to 142 in Chapter XVII have been found  deficient  in dealing with dishonour of cheques.  Not only the  punishment provided in the Act has proved to be inadequate,  the  procedure  prescribed  for  the  courts  to  deal  with  such   matters  has  been  found  to  be  cumbersome. The  courts  are  unable to dispose of such cases expeditiously in a time bound   manner in view of the procedure contained in the Act.

2. A large number of cases are reported to be pending under   sections  138  to  142  of  the  Negotiable  Instruments  Act  in  various  courts  in  the  country.  Keeping  in  view  the  large  number of complaints under the said Act pending in various   courts, a Working Group was constituted to review section 138   of  the  Negotiable  Instruments  Act,  1881  and  make  recommendations as to what changes were needed to effectively   achieve the purpose of that section.

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3.  The  recommendations  of  the  Working  Group  along  with  other  representations  from  various  institutions  and  organisations  were  examined  by  the  Government  in  consultation  with  the  Reserve  Bank of  India  and other  legal  experts,  and  a  Bill,  namely,  the  Negotiable  Instruments  (Amendment) Bill, 2001 was introduced in the Lok Sabha on  24th July, 2001. The Bill was referred to Standing Committee  on Finance which made certain recommendations in its report  submitted to Lok Sabha in November, 2001.

4.  Keeping  in  view  the  recommendations  of  the  Standing  Committee  on Finance and other  representations,  it  has been  decided to bring out, inter alia, the following amendments in  the Negotiable Instruments Act,1881, namely:—

(i) to increase the punishment as prescribed under the Act from  one year to two years;

(ii) to increase the period for issue of notice by the payee to the  drawer from 15 days to 30 days;

(iii) to provide discretion to the court to waive the period of one  month, which has been prescribed for taking cognizance of the  case under the Act;

(iv) to  prescribe  procedure  for  dispensing  with  preliminary  evidence of the complainant;

(v)  to  prescribe  procedure  for  servicing  of  summons  to  the   accused  or  witness  by  the  court  through  speed  post  or   empanelled private couriers;

(vi) to provide for summary trial of the cases under the Act with   a view to speeding up disposal of cases;

(vii) to make the offences under the Act compoundable;

(viii) to exempt those directors from prosecution under section  141 of the Act who are nominated as directors of a company by  virtue of their holding any office or employment in the Central  

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Government  or  State  Government  or  a  financial  corporation  owned or controlled by the Central Government, or the State  Government, as the case may be;

(ix) to provide that the Magistrate trying an offence shall have  power to pass sentence of imprisonment for a term exceeding  one year and amount of fine exceeding five thousand rupees;

(x) to make the Information Technology Act, 2000 applicable  to the Negotiable Instruments Act,1881 in relation to electronic  cheques  and truncated  cheques  subject  to  such modifications  and  amendments  as  the  Central  Government,  in  consultation  with  the  Reserve  Bank  of  India,  considers  necessary  for  carrying  out  the  purposes  of  the  Act,  by  notification  in  the  Official Gazette; and  

(xi)  to  amend  definitions  of  "bankers'  books"  and  "certified  copy" given in the Bankers' Books Evidence Act,1891.

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.

6. The Bill seeks to achieve the above objects.”    (emphasis added)

15. Though,  in  these  appeals,  we  are  mainly  concerned  with  the  

provisions of section 145, it would be useful here to take a look at all the  

five sections introduced by the 2002 amendment.

“143. Power of court to try cases summarily. (1)  Notwithstanding  anything  contained  in  the  Code  of  Criminal Procedure, 1973 (2 of 1974), all offences under this  Chapter shall be tried by a Judicial Magistrate of the first class  or by a Metropolitan Magistrate and the provisions of sections  

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262 to 265 (both inclusive) of the said Code shall, as far as may  be, apply to such trials:

       Provided that in the case of any conviction in a summary  trial under this section, it shall be lawful for the Magistrate to  pass a sentence of imprisonment for a term not exceeding one  year and an amount of fine exceeding five thousand rupees;

       Provided further that when at the commencement of, or in  the course of, a summary trial under this section, it appears to  the Magistrate that the nature of the case is such that a sentence  of imprisonment for a term exceeding one year may have to be  passed or that it is, for any other reason, undesirable to try the  case summarily, the Magistrate shall after hearing the parties,  record an order to that effect and thereafter recall any witness  who may have been examined and proceed to hear or rehear the  case in the manner provided by the said Code.

(2)  The  trial  of  a  case  under  this  section  shall,  so  far  as  practicable,  consistently  with  the  interests  of  justice,  be  continued from day to day until its conclusion, unless the court  finds the adjournment of the trial beyond the following day to  be  necessary  for  reasons  to  be  recorded  in  writing.

(3)  Every  trial  under  this  section  shall  be  conducted  as  expeditiously as possible and an endeavour shall  be made to  conclude the trial within six months from the date of filing of  the complaint.

144. Mode of service of summons.  (1)  Notwithstanding  anything  contained  in  the  Code  of  Criminal Procedure, 1973 (2 of 1974), and for the purposes of  this Chapter, a Magistrate issuing a summons to an accused or a  witness may direct a copy of summons to be served at the place  where such accused or witness ordinarily resides or carries on  business or personally works; for gain, by speed post or by such  courier  services  as  are  approved  by  a  Court  of  Session.

(2) Where an acknowledgment purporting to be signed by the  

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accused or the witness or an endorsement purported to be made  by  any  person  authorised  by  the  postal  department  or  the  courier services that the accused or the witness refused to take  delivery of summons has been received, the court issuing the  summons may declare that the summons has been duly served.

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.

(2) The court may, if it thinks fit, and shall, on the application  of the prosecution or the accused, summon and examine any  person giving evidence on affidavit  as  to the facts  contained  therein.

146. Bank's slip prima facie evidence of certain facts.  The  court  shall,  in  respect  of  every  proceeding  under  this  Chapter, on production of bank's slip or memo having thereon  the  official  mark  denoting  that  the  cheque  has  been  dishonoured,  presume the  fact  of  dishonour  of  such  cheque,  unless and until such fact is disproved.

147. Offences to be compoundable. Notwithstanding  anything  contained in  the  Code of  Criminal  Procedure, 1973 (2 of 1974), every offence punishable under  this Act shall be compoundable.”

16. It may be noted that the provisions of sections 143, 144, 145 and 147  

expressly depart from and override the provisions of the Code of Criminal  

Procedure, the main body of adjective law for criminal trials. The provisions  

of section 146 similarly depart from the principles of the Indian Evidence  

Act. Section 143 makes it possible for the complaints under section 138 of  

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the  Act  to  be  tried  in  the  summary  manner,  except,  of  course,  for  the  

relatively small number of cases where the Magistrate feels that the nature of  

the case is such that a sentence of imprisonment for a term exceeding one  

year may have to be passed or that it is, for any other reason, undesirable to  

try  the  case  summarily.  It  is,  however,  significant  that  the  procedure  of  

summary trials is adopted under section 143 subject to the qualification “as  

far as possible”,  thus,  leaving sufficient  flexibility so as not to affect  the  

quick  flow  of  the  trial  process.  Even  while  following  the  procedure  of  

summary  trials,  the  non-obstante clause  and  the  expression  “as  far  as  

possible”  used  in  section  143  coupled  with  the  non-obstante clause  in  

section  145  allows  for  the  evidence  of  the  complainant  to  be  given  on  

affidavit,  that  is,  in  the  absence  of  the  accused.  This  would  have  been  

impermissible  (even  in  a  summary  trial  under  the  Code  of  Criminal  

Procedure) in view of sections 251 and 254 and especially section 273 of the  

Code. The accused, however, is fully protected, as under sub-section (2) of  

section  145  he  has  the  absolute  and  unqualified  right  to  have  the  

complainant  and  any  or  all  of  his  witnesses  summoned  for  cross-

examination. Sub-section (3) of section 143 mandates that the trial would  

proceed, as far as practicable, on a day-to-day basis and sub-section (4) of  

the section requires the Magistrate to make the endeavour to conclude the  

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trial within six months from the date of filing of the complaint. Section 144  

makes the process of service of summons simpler and cuts down the long  

time ordinarily consumed in service of summons in a regular civil suit or a  

criminal  trial.  Section  145 with  its  non-obstante clause,  as  noted  above,  

makes it  possible for the evidence of the complainant to be taken in the  

absence of the accused. But the affidavit of the complainant (or any of his  

witnesses) may be read in evidence “subject to all just exceptions”. In other  

words, anything inadmissible in evidence, e.g.,  irrelevant facts or hearsay  

matters would not be taken in as evidence, even though stated on affidavit.  

Section 146, making a major departure from the principles of the Evidence  

Act provides that the bank’s slip or memo with the official mark showing  

that the cheque was dishonoured would by itself give rise to the presumption  

of dishonour of the cheque, unless and until that fact was disproved. Section  

147 makes the offences punishable under the Act, compoundable.

17. It is not difficult to see that sections 142 to 147 lay down a kind of a  

special code for the trial of offences under Chapter XVII of the Negotiable  

Instruments Act and sections 143 to 147 were inserted in the Act by the  

Negotiable  Instruments  (Amendment  and  Miscellaneous  Provisions)  Act,  

2002 to do away with all the stages and processes in a regular criminal trial  

that normally cause inordinate delay in its conclusion and to make the trial  

17

procedure as expeditious as possible without in any way compromising on  

the right of the accused for a fair trial.        

18. Here we must take notice of the fact that cases under section 138 of  

the Act have been coming in such great multitude that even the introduction  

of such radical measures to make the trial procedure simplified and speedy  

has been of little help and cases of dishonoured cheques continue to pile up  

giving rise to an unbearable burden on the criminal court system. The Law  

Commission in its report number 213 sent to the Union Minister for Law  

and Justice on November 24, 2008 advocated the setting up of Fast Track  

Magisterial  courts  for  dealing  with  the  huge  pendency  of  dishonoured  

cheque cases. In paragraph 1.5 of the report it was stated as follows:

“1.5.  Over  38  lac  cheque  bouncing  cases  are  pending  in  various courts in the country. There are 7,66,974 cases pending  in criminal  courts in Delhi at  the Magisterial  level  as on 1st  June, 2008. Out of this huge workload, a substantial portion is  of cases under section 138 of the Negotiable Instruments Act  which  alone  count  for  5,14,433  cases  (cheque  bouncing).  According  to  Gujarat  High  Court  sources,  there  are  approximately  two  lac  cheque  bouncing  cases  all  over  t  he  State, with the majority of them (84,000 cases) in Ahmedabad,  followed by Surat,  Vadodara  and Rajkot.  73,000 cases  were  filed  under  section  138  of  the  Negotiable  Instruments  Act  (cheque  bouncing)  on  a  single  day  by  a  private  telecom  company before a Bangalore court, informed the Chief Justice  of India, K. G. Balakrishnan, urging the Government to appoint  more judges to deal with 1.8 crore pending cases in the country.  The  number  of  complaints  which  are  pending  in  Bombay  

18

courts1 seriously cast  shadow on the credibility  of  our trade,  commerce and business. Immediate steps have to be taken by  all concerned to ensure restoration of the credibility of trade,  commerce and business.”

19. The situation arising from the mounting arrears is so grave that in the  

‘Vision Statement’ presented by the Union Minister for Law and Justice to  

the  Chief  Justice  of  India  in  course  of  the  National  Consultation  for  

strengthening the Judiciary towards reducing pendency and delays held on  

October 24, 2009, cases of dishonoured cheques were cited among one of  

the major bottlenecks in the criminal justice system. In paragraph 2 under  

the heading ‘the Action Plan’ it was stated as follows:

“2. Identification of Bottlenecks: Clearing the System 1. Studies have shown that cases under certain statutes and  

area  of  law  are  choking  dockets  of  magisterial  and  specialised courts, and the same need to be identified.

2. Bottlenecks shall be identified as follows: a) Matrimonial cases. b) Cases  under  section  498A  of  the  Indian  Penal  

Code, 1860. c) Cases  under  section  143  of  the  Negotiable  

Instrument Act, 1881. d) to (i) xxxxxxxxxx

1 On  the  date  of  the  report,  there  were  5,91,818  cases  pending  in  sub-ordinate  courts  of  State  of  Maharashtra,  1,57,191cases  pending  in  the  sub-ordinate  courts  of  State  of  Karnataka,  1,10,311  cases  pending in the sub-ordinate courts of State of Kerala and 5,14,433 cases in the sub-ordinate courts of the  State of Delhi under Section 138 of the Negotiable Instrument Act.

19

20. Once it is realized that sections 143 to 147 were designed especially to  

lay down a much simplified procedure for the trial of dishonoured cheque  

cases with the sole object that the trial of those cases should follow a course  

even swifter than a summary trial and once it is seen that even the special  

procedure failed to effectively and expeditiously handle the vast multitude of  

cases coming to the court, the claim of the accused that on being summoned  

under  section  145(2),  the  complainant  or  any  of  his  witnesses  whose  

evidence is given on affidavit must be made to depose in examination-in-

chief  all  over  again  plainly  appears  to  be  a  demand  for  meaningless  

duplication, apparently aimed at delaying the trial.

21. Nevertheless, the submissions made on behalf of the parties must be  

taken  note  of  and properly  dealt  with.  Mr Ranjit  Kumar,  learned Senior  

Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No.  

4760/2006  pointed  out  that  sub-section  (2)  of  section  145  uses  both  the  

words, “may” (with reference to the court) and “shall” (with reference to the  

prosecution or the accused). It was, therefore, beyond doubt that in the event  

an  application  is  made  by  the  accused,  the  court  would  be  obliged  to  

summon the person giving evidence on affidavit in terms of section 145(1)  

without having any discretion in the matter. There can be no disagreement  

with this part of the submission but the question is when the person who has  

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given his evidence on affidavit appears in court, whether it is also open to  

the accused to insist that before cross-examining him as to the facts stated in  

the affidavit he must first depose in examination-in-chief and be required to  

verbally state what is already said in the affidavit. Mr. Ranjit Kumar referred  

to  section  137 of  the  Indian Evidence  Act,  that  defines  “examination-in-

chief”, “cross-examination” and “re-examination” and on that basis sought  

to  argue  that  the  word  “examine”  occurring  in  section  145(2)  must  be  

construed to mean all  the three kinds of examination of  a  witness.  This,  

according to him, coupled with the use of the word “shall” with reference to  

the application made by the accused made it quite clear that a person giving  

his evidence on affidavit, on being summoned under section 145(2) at the  

instance of the accused must begin his deposition with examination-in-chief,  

before he may be cross-examined by the accused. In this regard he submitted  

that  section  145  did  not  override  the  Evidence  Act  or  the  Negotiable  

Instruments Act or any other law except the Code of Criminal Procedure. He  

further submitted that the plain language of section 145(2) was clear and  

unambiguous  and  was  capable  of  only  one  meaning  and,  therefore,  the  

provision must be understood in its literal sense and the High Court was in  

error in resorting to purposive interpretation of the provision. In support of  

the submission he relied upon decisions of this court in  Dental Council of   

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India vs. Hari Prakash and Ors., (2001) 8 SCC 61 and Nathi Devi vs. Radha  

Devi, (2005) 2 SCC 271. Mr. Siddharth Bhatnagar, learned counsel for the  

appellant in the appeal arising from SLP (Crl.) No. 1106/2007 also joined  

Mr. Ranjit Kumar in the submission based on literal interpretation. He also  

submitted  that  ordinarily  the  rule  of  literal  construction  should  not  be  

departed  from,  particularly  when  the  words  of  the  statute  are  clear  and  

unambiguous.  He  relied  upon  the  decision  in  Raghunath  Rai  Bareja  vs.   

Punjab National Bank, (2007) 2 SCC 230.

22. We are completely unable to appreciate the submission. The plea for a  

literal interpretation of section 145(2) is based on the unfounded assumption  

that  the  language  of  the  section  clearly  says  that  the  person  giving  his  

evidence on affidavit,  on being summoned at the instance of the accused  

must start his deposition in court with examination-in-chief. We find nothing  

in section 145(2) to suggest that. We may also make it clear that section 137  

of the Evidence Act  does not define “examine” to mean and include the  

three kinds of examination of a witness; it simply defines “examination-in-

chief”, “cross-examination” and “re-examination”. What section 145(2) of  

the Act says is simply this. The court may, at its discretion, call a person  

giving his evidence on affidavit and examine him as to the facts contained  

therein. But if an application is made either by the prosecution or by the  

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accused the court must call the person giving his evidence on affidavit, again  

to be examined as to the facts contained therein. What would be the extent  

and nature of examination in each case is a different matter and that has to  

be  reasonably  construed  in  light  of  the  provision  of  section  145(1)  and  

having regard to the object and purpose of the entire scheme of sections 143  

to 146. The scheme of sections 143 to 146 does not in any way affect the  

judge’s powers under section 165 of the Evidence Act. As a matter of fact,  

section 145(2) expressly provides that the court may, if it thinks fit, summon  

and examine any person giving evidence on affidavit. But how would the  

person giving evidence on affidavit  be examined, on being summoned to  

appear before the court on the application made by the prosecution or the  

accused? The affidavit  of the person so summoned that is already on the  

record is obviously in the nature of examination-in-chief. Hence, on being  

summoned  on  the  application  made  by  the  accused  the  deponent  of  the  

affidavit (the complainant or any of his witnesses) can only be subjected to  

cross-examination  as  to  the  facts  stated  in  the  affidavit.  In  so  far  as  the  

prosecution is concerned the occasion to summon any of its witnesses who  

has  given  his  evidence  on  affidavit  may  arise  in  two  ways.  The  

prosecution  may  summon  a  person  who  has  given  his  evidence  on  

affidavit  and  has  been  cross-examined  for  “re-examination”.  The  

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prosecution may also have to summon a witness whose evidence is given  

on  affidavit  in  case  objection  is  raised  by  the  defence  regarding  the  

validity and/or sufficiency of proof of some document(s) submitted along  

with the affidavit. In that event the witness may be summoned to appear  

before the court to cure the defect and to have the document(s) properly  

proved by following the correct  legal  mode. This appears to us as the  

simple answer to the above question and the correct legal position. Any  

other meaning given to sub-section (2) of section 145, as suggested by Mr.  

Ranjit  Kumar  would  make  the  provision  of  section  145(1)  nugatory  and  

would completely defeat the very scheme of trial as designed under sections  

143 to 147.    

23. Mr. Ranjit Kumar next submitted that section 145(2) was identical to  

section  296(2)  of  the  Code  of  Criminal  Procedure  and  this  court,  in  its  

decision in  State of Punjab vs. Naib Din, (2001) 8 SCC 578 dealing with  

section 296(2) of the Code made the following observation:  

“8. ....If any party to a lis wishes to examine the deponent of the  affidavit  it  is  open to him to make an application before the  court  that he requires the deponent to be examined or cross- examined in court. This is provided in sub-section (2) of section  296 of the Code. When any such application is made it is the  duty of the court to call such person to the court for the purpose  of being examined.”    

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24. Mr.  Siddharth  Bhatnagar  representing  the  appellant  in  the  appeal  

arising from SLP (Crl.) No.1106/2007 also joined Mr. Ranjit Kumar in the  

submission based on section 296(2) of Code. Mr. Bhatnagar submitted that  

since section 145(2) is identical to section 296(2) of the Code, it should be  

interpreted in light of the legislative history of section 296(2) and he tried to  

take us into the details of the legislative history of section 296 of the Code.

25. In our view the submission is wholly without merit. Neither section  

296(2)  of  the  Code  nor  the  decision  in  Naib  Din  has  any  relevance  or  

application to the trial concerning a dishonoured cheque under sections 143  

to  146  of  the  Act.  The  decision  in  Naib  Din  was  rendered  in  a  totally  

different context and the issue before the court was not, whether on being  

summoned  on  the  application  made  by  the  accused,  the  person  giving  

evidence on affidavit must begin his deposition with examination-in-chief.  

The appellants are reading into the passage from the decision in  Naib Din  

something that was not said by the court. Moreover, the crucial difference  

between section 296(2) of the Code and section 145(2) of the Act is that the  

former deals with the evidence of a formal nature whereas under the latter  

provision,  all  evidences  including substantive  evidence  may be  given  on  

affidavit.  Section 296 is part  of the elaborate procedure of a regular trial  

under the Code while the whole object of section 145(2) of the Act is to  

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design  a  much  simpler  and  swifter  trial  procedure  departing  from  the  

elaborate  and  time  consuming  trial  procedure  of  the  Code.  Hence,  

notwithstanding the apparent verbal similarity between section 145(2) of the  

Act  and  section  296(2)  of  the  Code,  it  would  be  completely  wrong  to  

interpret  the true scope and meaning of the one in the light of the other.  

Neither the legislative history of 296(2) nor any decision on that section can  

persuade  us  to  hold  that  under  section  145(2)  of  the  Act,  on  being  

summoned  at  the  instance  of  the  accused  the  complainant  or  any  of  his  

witnesses  should  be  first  made  to  depose  in  examination-in-chief  before  

cross-examination.           

26. Mr. Ranjit Kumar next submitted that in giving evidence on affidavit,  

the deponent (the complainant or any of his witnesses) can introduce hearsay  

or irrelevant facts in evidence to which the accused could have objected if  

the  deposition  was  made  in  court  as  examination-in-chief.  Hence,  the  

accused must have the right to call the complainant (or his witness giving  

evidence on affidavit) into the witness box for examination-in-chief so as to  

get the inadmissible parts in the affidavit excluded from his evidence. Once  

again the submission is devoid of merit. It is noted above that the evidence  

given on affidavit by the complainant is “subject to all just exceptions”. This  

simply means that the evidence given on affidavit must be admissible and it  

26

must  not  include inadmissible  materials  such as facts  not  relevant  to  the  

issue or any hearsay statements. In case the complainant’s affidavits contain  

statements  that  are  not  admissible  in  evidence  it  is  always  open  to  the  

accused to point those out to the court and the court would then surely deal  

with the objections in accordance with law.  

27. Mr. Ranjit Kumar lastly submitted that when the complainant gives  

his  evidence  on  affidavit,  then  the  documents  produced  along  with  the  

affidavit(s) are not proved automatically and unless the accused admits those  

documents  under  section  294  of  the  Code  of  Criminal  Procedure  the  

documents must be proved by oral testimony. We find no substance in this  

submission either and we see no reason why the affidavits should not also  

contain the formal proof of the enclosed documents. In case, however, the  

accused raises any objections with regard to the validity or sufficiency of  

proof  of  the  documents  submitted  along  with  the  affidavit  and  if  the  

objections are sustained by the court it is always open to the prosecution to  

have the concerned witness summoned and get the lacuna in the proof of the  

documents corrected.

28. Mr.  Ranjit  Kumar  also  made  a  feeble  attempt  to  contend  that  the  

provisions  of  sections  143  to  147  inserted  in  the  Act  with  effect  from  

February 6, 2003 would operate prospectively and would not apply to cases  

27

that were pending on that date. The High Court has considered the issue in  

great detail and has rightly taken the view that the provisions of sections 143  

to  147  do  not  take  away  any  substantive  rights  of  the  accused.  Those  

provisions are not substantive but procedural in nature and would, therefore,  

undoubtedly, apply to the cases that were pending on the date the provisions  

came into force. We are fully in agreement and in order to buttress the view  

taken by the High Court we will only refer to a decision of this court.   

29. In Gurbachan Singh vs. Satpal Singh and Ors., 1990 (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:

28

"The presumption against retrospection does not apply to  legislation concerned merely with  matters of procedure  or of evidence; on the contrary, provisions of that nature  are to be construed as retrospective unless there is a clear  indication  that  such  was  not  the  intention  of  Parliament."”  

      (emphasis  added)

30. Coming  now  to  the  last  question  with  regard  to  the  right  of  the  

accused to give his evidence, like the complainant, on affidavit,  the High  

Court has held that subject to the provisions of sections 315 and 316 of the  

Code  of  Criminal  Procedure  the  accused  can  also  give  his  evidence  on  

affidavit. The High Court was fully conscious that section 145(1) does not  

provide  for  the  accused  to  give  his  evidence,  like  the  complainant,  on  

affidavit. But the High Court argued that there was no express bar in law  

against the accused giving his evidence on affidavit and more importantly  

providing  a  similar  right  to  the  accused  would  be  in  furtherance  of  the  

legislative intent to make the trial process swifter. In paragraph 29 of the  

judgment, the High Court observed as follows:

“It is true that section 145(1) confers a right on the complainant  to give evidence on affidavit. It does not speak of similar right  being  conferred  on  the  accused.  The  Legislature  in  their  wisdom may not have thought it proper to incorporate a word  ‘accused’  with  the  word  ‘complainant’  in  sub-section  (1)  of  section 145 in view of the immunity conferred on the accused  from being compelled  to  be a  witness  against  himself  under  Article 20(3) of the Constitution of India….”     

29

Then in paragraph 31 of the judgment it observed:

“…. Merely because, section 145(1) does not expressly permit  the accused to do so, does not mean that the Magistrate cannot  allow the accused to give his evidence on affidavit by applying  the same analogy unless there is just and reasonable ground to  refuse such permission. There is no express bar on the accused  to give evidence on affidavit either in the Act or in the Code….. I find no justified reason to refuse permission to the accused to  give  his  evidence  on  affidavit  subject  to  the  provisions  contained in sections 315 and 316 of the Code.”       

31. On this issue, we are afraid that the High Court overreached itself and  

took a course that amounts to taking-over the legislative functions.

32. On  a  bare  reading  of  section  143  it  is  clear  that  the  legislature  

provided for the complainant to give his evidence on affidavit and did not   

provide for the accused to similarly do so. But the High Court thought that  

not mentioning the accused along with the complainant in sub-section (1) of  

section 145 was merely an omission by the legislature that it could fill up  

without difficulty. Even though the legislature in their wisdom did not deem  

it proper to incorporate the word ‘accused’ with the word ‘complainant’ in  

section  145(1),  it  did  not  mean  that  the  Magistrate  could  not  allow  the  

accused  to  give  his  evidence  on  affidavit  by  applying  the  same  analogy  

unless there was a just and reasonable ground to refuse such permission.  

There are two errors apparent in the reasoning of the High Court. First, if the  

legislature in their wisdom did not think “it proper to incorporate a word  

30

‘accused’ with the word ‘complainant’ in section 145(1)……”, it was not  

open to the High Court to fill  up the self perceived blank. Secondly, the  

High Court was in error in drawing an analogy between the evidences of the  

complainant and the accused in a case of dishonoured cheque. The case of  

the complainant in a complaint under section 138 of the Act would be based  

largely on documentary evidence. The accused, on the other hand, in a large  

number of cases, may not lead any evidence at all and let the prosecution  

stand  or  fall  on  its  own  evidence.  In  case  the  defence  does  lead  any  

evidence, the nature of its evidence may not be necessarily documentary; in  

all likelihood the defence would lead other kinds of evidences to rebut the  

presumption that the issuance of the cheque was not in the discharge of any  

debt  or  liability.  This  is  the  basic  difference  between  the  nature  of  the  

complainant’s  evidence  and  the  evidence  of  the  accused  in  a  case  of  

dishonoured cheque. It is, therefore, wrong to equate the defence evidence  

with  the  complainant’s  evidence  and  to  extend  the  same  option  to  the  

accused as well.  

33.      Coming back to the fist error in the High Court’s reasoning, in the  

guise of interpretation it is not permissible for the court to make additions  

in the law and to read into it something that  is  just     not there.   In Union  

of India and Anr.        vs.      Deoki Nandan Aggarwal,    1992 Supp. (1) SCC  

31

323, this court sounded the note of caution against the court usurping the  

role of legislator in the guise of interpretation. The court observed:

“14. …it is not the duty of the court either to enlarge the scope  of the legislation or the intention of the legislature when the  language of the provision is plain and unambiguous. The court  cannot  rewrite,  recast  or  reframe the  legislation  for  the  very  good reason that  it  has no power  to  legislate.  The power  to  legislate has not been conferred on the courts. The court cannot  add words to a statute or read words into it which are not there.  Assuming there is a defect or an omission in the words used by  the legislature the court  could not go to its  aid to correct  or  make up the deficiency. Courts shall decide what the law is and  not what it should be. The court of course adopts a construction  which will carry out the obvious intention of the legislature but  could not legislate itself. But to invoke judicial activism to set  at  naught  the  legislative  judgment  is  subversive  of  the  constitutional harmony and comity of instrumentalities….”  

34. In  Raghunath  Rai  Bareja  and Anr.  vs. Punjab National  Bank and  

Ors.,  (2007) 2 SCC 230 while observing that it  is the task of the elected  

representatives of the people to legislate and not that of the Judge even if it  

results in hardship or inconvenience, Supreme Court quoted in affirmation,  

the observation of Justice Frankfurter of the US Supreme Court which is as  

follows:

“41. As stated by Justice Frankfurter of the US Supreme Court  (see  “Of  Law  and  Men:  Papers  and  addresses  of  Felix   Frankfurter”)

“Even within their  area of choice the courts are not at  large. They are confined by the nature and scope of the  judicial function in its particular exercise in the field of  interpretation. They are under the constraints imposed by  the  judicial  function  in  our  democratic  society.  As  a  

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matter  of  verbal  recognition  certainly,  no  one  will  gainsay  that  the  function  in  construing  a  statute  is  to  ascertain the meaning of words used by the legislator. To  go beyond it is to usurp a power which our democracy  has  lodged  in  its  elected  legislature.  The  great  judges  have constantly admonished there bretheren of the need  for discipline in observing the limitations. A judge must  not rewrite a statute, neither to enlarge nor to contract it.  Whatever  temptations  the  statesmanship  of  policy- making might wisely suggest, construction must eschew  interpolation  and evisceration.  He must  not  read in  by  way of creation.  He must not read out except to avoid  patent nonsense or internal contradiction.”   

35. In  Duport  Steels  Ltd.  vs.  Sirs,  [1980]  1  All  ER  529,  534,  Lord  

Scarman expounded the legal position in the following words:  

“But in the field of statute law the judge must be obedient to the  will of Parliament as expressed in its enactments. In this field  Parliament makes and unmakes the law. The judge’s duty is to  interpret  and  to  apply  the  law not  to  change  it  to  meet  the  judge’s  idea  of  what  justice  requires.  Interpretation  does,  of  course,  imply  in  the  interpreter  a  power  of  choice  where  differing  construction  are  possible.  But  our  law  require  the  judge to  choose  the  construction which in  his  judgment  best  meets the legislative purpose of the enactment. If the result be  unjust  but  inevitable,  the  judge  may  say  so  and  invite  Parliament to reconsider its provision. But he must not deny the  statute.”     

36. In light of the above we have no hesitation in holding that the High  

Court was in error in taking the view, that on a request made by the accused  

the  magistrate  may  allow  him  to  tender  his  evidence  on  affidavit  and  

consequently, we set aside the direction as contained in sub-paragraph (r) of  

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paragraph 45 of  the  High Court  judgment.  The appeal  arising  from SLP  

(Crl.) No. 3915/2006 is allowed.

37. All the remaining six appeals are dismissed.  

38. There shall be no order as to costs.

………………………………J   (TARUN CHATTERJEE)

          ……………………………….J   (AFTAB ALAM)

New Delhi, January 11, 2010             

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