The question, therefore, that falls for determination is: ‘whether the provisions of Section 145 Negotiable Instruments Act would be applicable retrospectively to proceedings pending on the date when provisions of the Act No. 55 of 2002 came into force, that is to say, on 06.02.2003?’ The submission of Sri Neeraj Pandey pressed with much vehemence is that the provisions of Act No. 55 of 2002 would not apply retrospectively to pending complaints, particularly, as the provisions of Section 138 Negotiable Instruments Act are penal in nature, do not hold much substance, the issue being set at rest from what appears to be one of the early decisions rendered after a very copious and searching analysis by the Bombay High Court in Peacock Industries Limited & others vs. Budhrani Finance Ltd & others reported in 2007(1) Crimes 271 where the question involved, as the one here, was formulated as question (b) in the following words set out in paragraph 2 of the report:
“(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?“
The question was squarely answered vide paragraphs-32 to 35 of the report which reads thus:
32. Next I would like to consider the question whether the provisions of Section 145 of the Act, operate prospectively or retrospectively. This question is essentially raised in Writ Petition No.1659 of 2005 and Writ Petition No.2063 of 2005. Mr.Lopo Singh, learned Counsel for the petitioner, based his arguments on the judgment of the Supreme Court in Hitendra Vishnu Thakur and Ors. v. The State of Maharashtra and Ors. 1994 Supreme Court Cases (Cri.) 1087. In the light of the law laid down by the Supreme Court in that case it was submitted that the amended provisions of Section 145 clearly affect substantive rights of the accused contained in Chapter XX and XXI and Section 461 of the Code as well as the rights of accused under various provisions of the Evidence Act relating to examination of the witnesses.
33. On the other hand Mr.Aney, learned senior counsel appearing for the complainant in that case submitted that this question is no longer res integra and it has been answered by this Court in M/s.Indraprastha Holdings Ltd. v. Shri Vijay J.Shah and Anr. CDJ 2006 BHC 149. He further submitted that where the Amending Act is to substantive law it operates prospectively whereas any amendment to procedural law it must operate retrospectively unless a contrary intention is seen in the amending Act. In support of this proposition, he too placed reliance upon the judgments of the Supreme Court in Hitendra Thakur’s case and on Rajendrakumar v. Kalyan . Mr.Aney further submitted that the Code of Criminal Procedure and the Evidence Act are general laws and are statutes primarily of a procedural or enabling nature, and the rights created thereunder can always be altered or changed by the Legislature specifically intended for special situations. The Legislature is competent to legislate on a class of offences and to provide separate procedure to deal with the same. He then submitted that in view of the non-obstante clause in Section 145, the provisions of the Code cannot have any bearing, and their inapplicability cannot be seen as a denial of a substantive right.
34. This Court in M/s.Indraprastha Holdings Ltd. (supra) has considered the very question whether the provisions of the Negotiable Instruments Act, 1881 as amended by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 are applicable to the complaints under Section 138 of the Act which are pending on the date on which the Amending Act came into force. While dealing with the said question several judgments of the Supreme Court including the judgment in the case of Hitendra Thakur (supra), on which heavy reliance was placed upon, the learned Single Judge held that most of the provisions inserted by the Amending Act of 2002 and in particular Section 145 are purely procedural in nature and there is nothing in the Amending Act to indicate that the provisions therein were intended to apply prospectively. The said judgment also quoted the principles culled out from Hitendra Thakur’s case, and observed that every litigant has a vested right in substantive law, and that amendment which created new disabilities or created new rights and liabilities only would be prospective in operation. I do Page 2486 agree with the view expressed by the learned Single Judge in M/s. Indraprastha Holdings Ltd. I, however, would like to add few more lines in support of that view.
35. A bare look at the provisions contained in Chapter XX and XXI or Section 461 of the Code would show that there is nothing contained therein that could be said to amount substantive right. Chapter XX deals with the trial of summons case whereas Chapter XXI is concerned with summary trials. Both chapters are in fact concerned with the procedure to be followed in summons or summary trials. The provisions contained in these chapters did not indicate any substantive right. Moreover, the provisions of Section 145 begin with a non-obstante clause carving out exception to the provisions of the Code. Therefore, even if it is accepted that any of the provisions contained in Chapter XX and XXI or Section 461 creates substantive right, the effect of non-obstante clause is to exclude anything adverse that may be contained in the Code while interpreting and implementing the amended provisions of Section 145. The Code of Criminal Procedure and the Evidence Act are general laws and the rights created thereunder cannot be termed as substantive rights or vested rights of substantive nature causing any prejudice whatsoever to the accused by the Amending Act of 2002 and in particular Section 145. A bare perusal of Section 145 show that both the sub-sections (1) and (2) as introduced by the Amending Act of 2002 fall within the realm of procedural law, and hence they would be applicable to the pending cases since there is no vested right in an accused in the procedural law. Moreover, the object which influenced the Parliament to introduce the provisions of Section 145 cannot be overlooked. The observations of the Supreme Court in Rajendra Kumar’s case (supra) are also useful. The Supreme Court in that case has observed that some differentiation exists between a procedural statute and statute dealing with substantive rights and in the normal course of events, matters of procedure are presumed to be retrospective unless there is an express ban on to its retrospectivity. It is against this backdrop the provisions contained in Section 145 cannot be said to have prospective effect and it must operate retrospectively.”