- (1.) Learned Advocate of the petitioners submits that the learned Magistrate ought to have resorted to further enquiry under Section 202 of the Code of Criminal Procedure prior to issuance of the process against the accused persons, inasmuch as, they reside beyond the territorial jurisdiction of the learned Magistrate. Prosecution under section 138 of the Negotiable Instruments Act is to be conducted in terms of special procedure laid down in the said Act as amended in 2002. Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 incorporated sections 143 to 147 to the aforesaid Act in order to ensure swift and efficient disposal of such cases. Section 143 gave power to try cases summarily and provided for a time bound disposal of such cases; section 144 provided for effective mode of service of summons while section 145 made an exception to the provisions of the Code and empowered the complainant to give evidence on affidavit; section 146 facilitated proof of the reason for dishonour by providing that bank's slip would be prima facia evidence of facts contained therein and section 147 made the offence compoundable.
(2.) In order to interpret the scope and ambit of such amendments the purpose of introducing them as narrated in the Statement of Objects and Reasons appended to the bill may be recounted as under:- "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 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."
(3.) Reading the amendments particularly section 145 thereof in the light of the aforesaid Statement of Objects and Reasons, it leaves no room of doubt in one's mind that the recording of evidence of the complainant and his witnesses by way of affidavit dispenses with the preliminary deposition of the complainant and witnesses (if any) as required under section 200/202 of the Code of Criminal Procedure. A learned Single Judge of this Court endorsed such view in Magma Leasing Limited Vs. The State, 2006 2 CalCriLR 539 , which reads as follows:- "4. On a perusal of Section 145 of the Negotiable Instruments Act, provision contained in Section 200 Cr.P.C., decisions cited by Mr. Bhattacharyya and the impugned order passed by the learned Metropolitan Magistrate, 9th Court, Calcutta it appears to me that acceptance of affidavit filed by the complainant pursuant to Section 145 of Negotiable Instruments Act should be read as sufficient compliance as provided in Section 200 Cr.P.C. That apart the Section 145 of the Negotiable Instruments Act runs as under: "S.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." 5. Therefore, Section 200 of Cr.P.C. has no application in the instant case when the complainant filed an affidavit pursuant to Section 145 of N.I. Act. . . .";