At the hearing on 18.11.2017 also, no one put in appearance on behalf of the Payee as was the position way back in the year 2005 when the interim order was extended. The matter is accordingly being heard with the assistance of Sri Neeraj Pandey, learned counsel appearing on behalf of the Applicant and learned AGA on behalf of the State.
The first point in challenge to the Complaint and the impugned order made by Sri Neeraj Pandey is to the effect that the complainant has not examined himself on oath under Section 200 Cr.P.C. by deposing in the witness box as required by law; rather he has filed his evidence in support of the complaint to serve as a statement under Section 200 Cr.P.C. through an affidavit taking aid of the provisions of Section 145 Negotiable Instruments Act that permit a complainant to do so. It is pointed out by Sri Neeraj Pandey that the provisions of Section 145 Negotiable Instruments Act have been brought in through an amendment by Act No. 55 of 2002 with effect from 06.02.2003 whereas the Complaint was instituted on 13.11.2002, a fact apparent on a bare perusal of the record. Sri Pandey has urged that the provisions of Section 145 Negotiable Instruments Act on the strength of which the Payee’s affidavit has been accepted for the complainant’s evidence under Section 200 Cr.P.C. are not at all available to the Payee as valid procedure to pursue the complaint before the Magistrate inasmuch as the provisions of Section 145 Negotiable Instruments Act (supra) have been introduced with effect from 06.02.2003 and, therefore, cannot have retrospective operation or apply to complaints pending on the date of enforcement of the Amending Act (The Act No. 55 of 2002). It is no doubt true that on un-controverted facts the date on which the Complaint was filed, provisions of Section 145 Negotiable Instruments Act were not to be found on the statute book. These were introduced through the Negotiable Instruments (Amendment and Miscellaneous Provision) Act, 2002 or Act No. 55 of 2002 vide Section 10 of the amending Act with effect from 06.02.2003. The complaint in the instant case was filed as already said on 13.11.2002. What, however, needs to be noticed that the Drawer’s evidence on affidavit was accepted by the Magistrate on 06.02.2004 and the impugned order came to be passed on 29.04.2004. Thus, by the time the complainant’s evidence came to be recorded the provisions of Section 145 Negotiable Instruments Act had come to be enacted dispensing with the need to have that evidence recorded on oath in the witness box under Section 200 Cr.P.C. The impugned order was passed thereafter.