Thus, this Court finds no substance in the submission of Sri Neeraj Pandey that the Payee could not have been permitted to lead evidence on affidavit on the basis of provisions of Section 145 Negotiable Instruments Act introduced subsequent to the filing of the complaint by Act No. 55 of 2002 with effect from 06.02.2003. The said provision is available to a complainant whose complaint was pending on the date when the Section 145 Negotiable Instruments Act last mentioned came into force. Thus, the submission of Sri Neeraj Pandey that the provisions of Section 145 of the Negotiable Instruments Act introduced through Act No. 55 of 2002 with effect from 06.02.2003 cannot have retrospective operation and , therefore, would not apply to pending cases is not fit to be accepted.
The second limb of challenge to the impugned order is to the effect that the Magistrate could not have summoned the applicant for an offence punishable under Section 420 IPC based an affidavit evidence of the Drawer taken on record in place of his evidence in the dock on oath under Section 200 Cr.P.C. Sri Pandey contends that the special procedure envisaged under Section 145 Negotiable Instruments Act is available only to the complainant who invokes the provisions of Section 138 of the said Act. The said provisions would have no application in cases of offences other than Section 138, and, surely not to an offence punishable under the Penal Code like Section 420 IPC.
A perusal of chapter XVII of the Negotiable Instruments Act shows that it is titled as “Of Penalties in case of Dishonour of Certain Cheques for Insufficiency of Funds in the Accounts.” The aforesaid chapter with Sections 138 to 142 was introduced in the Negotiable Instruments Act by Act No. 16 of 1988 with effect from 01.04.1989.
The above provisions were incorporated in the Act aforesaid for the purposes of safeguarding and sustaining the credibility of commercial transactions and to ensure that transactions through this particular Negotiable Instrument, that is, a cheque becomes a dependable way of transacting business. The provision was rigorously used with proliferation of litigation by way of complainants under Section 138 of the said Act. It was felt that the procedure provided under the Code of Criminal Procedure for recording of evidence under Sections 200 and 202 Cr.P.C. obliging a complainant to tender evidence on oath in the dock was not in keeping with the special context of a prosecution under Section 138 Negotiable Instruments Act. It was, therefore, that the Parliament with the object of ensuring that the procedure in a complaint under Section 138 Negotiable Instruments Act becomes less cumbersome, and, pending trials as well as new trials are expedited, introduced the provisions of Section 143 to 147 to the existing Chapter XVII of the said Act.
Section 145 of the Negotiable Instruments Act is being quoted in extenso:
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.