- (1.) This Court on 10th May, 2012, had passed the following order: "Counsel of the parties are in agreement that the facts and issue of law raised in both the petitions are common. For facility of reference, facts are being gathered from Criminal Revision no. 3946 of 2011. In the present case the opposite party no.1, P. K. Kejarial had filed a complaint under Section 138 of the Negotiable Instruments Act in the Court of Chief Judicial Magistrate, Alipore. The complaint was taken up for hearing on 6th of March, 2007 by the Chief Judicial Magistrate, Alipore who passed an order wherein he stated that he had perused the petition of complaint, considered and cognizance is taken. Thereafter, the complaint was assigned to the Court of Fifth Judicial Magistrate at Alipore, South 24 Parganas. On the same day, i.e. 6th of March, 2007, the Judicial Magistrate stated that the complainant is present. Perused the evidence as deposition on affidavit and documents. "On perusal of above I am of the opinion that the complt. made out a prima facie case u/s.138 of N.I. Act against the accd. Person." Thereafter summons were issued against the petitioner. To challenge the impugned order in these two petitions, summoning the petitioners to stand trail for offence under Section 138 of the Negotiable Instruments Act, counsel of the petitioner has relied upon Antony Vs. The State and Anr, 2009 2 CalCriLR 607 to contend that Sections 142 and 145 of the Negotiable Instruments Act contain a non- obstante clause. Counsel has emphasised on Section 145 of the Negotiable Instruments Act which stated "notwithstanding anything contained in the Code of Criminal Procedure, 1973 the evidence of the complainant may be given by him on affidavit and may, subject to all exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code".
(2.) I have perused the judgment cited by counsel of the petitioner wherein it was held: "17. From the above discussions, I am of the considered view that the non-obstante Clause in Sections 142 or 145 of the N.I. Act does not override the provisions of Section 200 of Cr.P.C. and it is mandatory for the Magistrate to examine the complainant who has filed the same under Section 138 of the N.I. Act though with an affirmation as regards truthfulness of the contents of the complaint. It, therefore, follows that the Magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under Section 204 of Cr.P.C. though there is a solemn affirmation at the foot of the complaint by the complainant." At this stage counsel for the petitioner has stated that there is no contrary judgment of the Supreme Court to the view formulated by this Court in Antony Vs. The State and Anr. . Mr. Sandipan Ganguly, who is present, is appointed as amicus curiae in this case to assist this Court regarding the correct interpretation of law given on the issue by the Supreme Court. List on 14.5.2012." In pursuance of the order, Sri Sandipan Ganguly, amicus curaie, assisted by Mr. Ayan Bhattacharya, has brought to my notice two judgments of the Hon'ble Apex Court, namely, Mandvi Cooperative Bank Limited Vs. Nimesh B. Thakore, 2010 2 SCC(Cri) 1 and Radhey Shyam Garg Vs. Naresh Kumar Gupta, 2010 1 SCC(Cri) 980. Ratio of law propounded by the Hon'ble Supreme Court in the above two judgments squarely overrule the ratio of law laid down in Antony's case relied by the counsel for the petitioner.
(3.) It will be apposite here to reproduce para 2 and portion of para 10 of Radhey Shyam Garg : "2. ...............cognizance of the offence was taken and summons was directed to be issued by an order dated 9-6-2004. Post-summoning evidence was also adduced by the complainant on 26-3-2007 by way of an affidavit. 10..................It contains a non obstante clause. The provisions of the Code of Criminal Procedure, 1973 are, thus, not attracted. The Court, subject to just exceptions, may allow the complainant to give evidence by way of an affidavit. Such an evidence by way of an affidavit had been made admissible in evidence in any enquiry, trial or other proceedings under the Code.";