1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE SIDE CRIMINAL WRIT PETITION NO. 1544 OF 2009 Abdul Aziz Lokhandwala ) aged about 42, Occu. Business, residing at 2102, ) Lady Ratan Tower, 21st Floor, Gandhi Nagar, ) Worli, Mumbai-400 018. )..Petitioner vs. 1. Nasir Ali, Adult, Occ. Business, Director, ) M/s. Shri Rani Sati Ingots, having office at Mouje ) Ambitkar Wada, Shahapur Road, Tal. Wada, Dist.Thane ) 2. The State of Maharashtra ) (Copy to be served on the Public Prosecutor, ) High Court, Bombay). ) 3. Union of India (Copy to be served on Joint Secretary, ) Law and Judiciary Department, Branch Secretariat ) Mumbai, Aayakar Bhawan, Mumbai. )..Respondents WITH CRIMINAL WRIT PETITION NO. 1545 OF 2009 Santosh Balasaheb Deshmukh, age 29, adult, ) Occ. Business, residing at Shrikrishna Housing Society, ) Subhash Nagar, Behind Apsara Talkies, Bhiwandi, ) Dist. Thane. ).. Petitioner vs. 1. Hanuman Baliram Pawar, adult, Occ. Business, ) residing at Babla Compound, Behind Apsara Talkies, ) Bhiwandi, Dist. Thane. ) 2. The State of Maharashtra ) (Copy to be served on the Public Prosecutor, ) High Court, Bombay). ) 2 3. Union of India (Copy to be served on Joint Secretary, ) Law and Judiciary Department, Branch Secretariat ) Mumbai, Aayakar Bhawan, Mumbai. )..Respondents WITH CRIMINAL WRIT PETITION NO. 3152 OF 2009 Vasant L. Bhatt, age 65 years, Proprietor of ) M/s. Lakshmi Narayan Enterprises, having his office at ) B/30, Patel Shopping Centre, Chandavarkar Road, ) Borivli (West), Mumbai-400 092 )..Petitioner versus 1. Jignesh Dinesh Vyas, age 34 years, Proprietor of ) M/s. Discovery Productions, having his office at ) Unit No. 104, Kuber Complex, New Link Road, ) Andheri (West), Mumbai-400 053. ) 2. The State of Maharashtra ) (Through the Government Pleader ) High Court, Appellate Side) ) 3. Union of India (Copy to be served on Joint Secretary, ) Law and Judiciary Department, Branch Secretariat ) Mumbai, Aayakar Bhawan, Mumbai. )..Respondents Shri P.M. Pradhan for the petitioners in Writ Petition Nos. 1544 of 2009 and 1545 of 2009. Shri P.M. Mokashi for the petitioner in Writ Petition No. 3152 of 2009. None for Respondent No. 1 in all Writ Petitions. Shri Y.M. Nakhawa, Additional Public Prosecutor, for the State in all Writ Petitions. Shri D.J. Khambata, Additional Solicitor General, with Shri A. Shah for Respondent No.3 in all Writ Petitions. CORAM: P.B.MAJMUDAR & R.G.KETKAR, JJ. DATED: 5 th January, 2010 . 3 ORAL JUDGMENT : (Per P.B.Majmudar, J.) 1. Since the common law points are involved in all these petitions, all these petitions are taken up for hearing together. The petitioners in each of these petitions are facing trial under section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the N.I. Act’). 2. So far as Criminal Writ Petition No. 3152 of 2009 is concerned, a Division Bench of this Court by its order dated 2nd December, 2009 directed the Registry to club this petition along with Writ Petition Nos. 1544 of 2009 and 1545 of 2009, as the point involved in the said petition is the same and that is how all these writ petitions are placed for hearing together. On behalf of the petitioners it is submitted that the provisions of Section 145 of the N.I. Act are ultra vires the provisions of Article 21 of the Constitution of India and the said Section is required to be struck down. 3. As pointed out earlier, the petitioners are facing trial under section 138 of the N.I. Act. According to the petitioners, at the time of trial, in lieu of the examination in chief, the original complainants have tendered their affidavits which contain various leading questions. The petitioners, who are the accused, therefore, objected the same before the concerned Magistrate. So far as Writ Petition No. 1544 is concerned, on behalf of the accused an 4 application was preferred for making a reference under section 395 of the Code of Criminal Procedure, 1973 read with section 142 of the Indian Evidence Act, 1872(hereinafter referred to as the “Evidence Act”). The learned Magistrate by an order dated 17th February, 2009 came to the conclusion that no legal question arises as to the validity of any Act which is necessary to dispose the case to make reference to the High Court. A revision was preferred against the said order before the District Court at Thane bearing Criminal Revision Petition No. 39 of 2009. The same was also dismissed on 6th May, 2009 against which above Writ Petition No. 1544 of 2009 is filed. 5. Mr. Pradhan, learned counsel appearing for the petitioners in Writ Petition Nos. 1544 and 1545 of 2009, submitted that as per Section 142 of the Evidence Act, leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. Mr. Pradhan submitted that in the affidavit submitted in lieu of examination-in-chief by the complainant, leading questions are finding place in such affidavit. It is submitted by Mr. Pradhan that by permitting the complainant to tender his affidavit, it may prejudice the case of the accused as, though the accused can object to putting leading questions in the examination-in-chief in ordinary criminal trial, he has no such right to object, if affidavit in lieu of examination-in-chief is tendered under Section 145 (1) of the N.I. Act. It is submitted by Mr. Pradhan that in view of 5 the same, Section 145 of the N.I. Act is ultra vires the provisions of Article 21 of the Constitution of India as it denies the accused an opportunity of a fair trial. The said provision is also violative of Section 141 of the Evidence Act. He submitted that under the N.I. Act also the accused is entitled to have a fair trial and the provisions of the Evidence Act is also applicable to such trial. It is submitted by Mr. Pradhan that even if a person is tried under the N.I. Act, nonethless he is an accused and is required to be treated at par with other accused who might be facing trial under different enactments. Mr. Pradhan submitted that no affidavit in lieu of examination-in-chief should be permitted and, therefore, Section 145 of the N.I. Act should be struck down. According to Mr. Pradhan, if a person is permitted to put leading questions in the affidavit, it will prejudice the case of the accused and it will be contrary to the provisions of Section 142 of the Evidence Act. 6. Mr. Pradhan in this behalf relied upon the decision of the Supreme Court in the case of Varkey Joseph v. State of Kerala1 . It has been held by the Supreme Court that the prosecutor cannot put leading questions on the material part of evidence which the witness intends to give in evidence against the accused. Such leading questions offend right of accused to fair trial under Article 21 of the Constitution of India. Relying on the said judgment, it is submitted by Mr. Pradhan that Section 145 of the N.I. Act is required to be struck down as the same is violative of Article 21 of the 1 AIR 1993 SC 1982 6 Constitution of India as the accused is denied the fair opportunity to prove his case during trial. Mr. Pradhan further submitted that once the affidavit is tendered in evidence, no remedy is available with the accused. Mr. Pradhan submitted that in an indirect manner the complainant is permitted to put leading questions by placing the same in the affidavit. Mr. Pradhan submitted that the fundamental right of the accused to have a fair trial is denied if affidavit is permitted in lieu of examination-in-chief and, therefore, such a provision should be struck down as violative of Article 21 of the Constitution of India. 7. Mr. D.J. Khambata, learned Additional Solicitor General, on the other hand, submitted that so far as section 138 of the N.I. Act is concerned, it is a separate procedure enacted for the purpose of speedy trial in connection with dishonour of cheques. It is submitted by Mr. Khambata that when there is a special statute enacted, it overrides other general statues. Mr. Khambata submitted that Section 138 of the N.I. Act is a special provision enacted and, therefore, it cannot be argued that the provisions under such enactment are inconsistent with other law or any other enactment. Mr. Khambata further submitted that even if there is any inconsistency, in given case, the provisions of the N.I. Act shall prevail as the same is also a Central Act like the Evidence Act. Mr. Khambata further submitted that so far as Section 142 of the Evidence Act is concerned, even in civil trial same is applicable, yet in lieu of 7 examination-in-chief affidavit is permitted to be tendered in evidence. Mr. Khambata submitted that, even otherwise, sufficient safeguard is provided to the accused so far as the N.I. Act is concerned as the accused is given opportunity to cross-examine the complainant on such affidavit. Even as per Section 145 of the N.I. Act, 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. Mr. Khambata submitted that it is not for the accused to insist that he must be tried in a particular manner. It is submitted that a special machinery is provided under the N.I. Act for speedy disposal of certain type of cases. It is submitted that the accused is given all the right to put his case. Even such affidavit can also be taken subject to just exceptions and in a given case the Court may refuse to take such affidavit on record. He, therefore, submitted that the said provision cannot be said to be in any way violative of Article 21 of the Constitution of India as the accused is given fair opportunity to defend his case. Mr. Khambata submitted that there is nothing like putting any questions in the affidavit as the affidavit is not in the form of questions and answers and, therefore, even otherwise, there is no question of putting any leading questions when the complainant is given evidence on affidavit as per section 145 (1) of the N.I. Act. 8. We have heard the learned counsel appearing in the matters at great length. We have also considered the relevant provisions of the N.I. Act 8 and the Evidence Act. It is not in dispute that the accused in each of these petitions are facing trial under section 138 of the N.I. Act in connection with the bouncing of the cheques. In order to find out as to whether by allowing the complainant to tender affidavit in lieu of examination-in-chief, any prejudice is caused to the accused, it is necessary to examine the scheme of the Evidence Act as well as the N.I. Act. So far as the question about leading questions are concerned, Sections 141 and 142 of the Indian Evidence Act, 1872 provide as under: 141. Leading questions.- Any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question. 142. When they must not be asked.- Leading questions must not, if objected to by the adverse party, be asked in an examination-in-chief, or in a re-examination, except with the permission of the Court. The Court shall permit leading questions as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved. 9. So far as leading questions are concerned, normally such questions cannot be asked in examination-in-chief except with the leave of the Court. So far as Section 138 of the N.I. Act is concerned, the same was inserted by the Banking Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 (66 of 988) with effect from 01.04.1989. It provides for a special machinery in connection with dis-honour of cheque due to insufficient funds in the account of the drawer of the cheque. The said Act is, therefore, a complete code in itself and provides procedure in connection with 9 the remedy available to the complainant in case of dishonour of cheques. Section 143 of the Act permits the Court to try such cases in a summary manner. It may be useful to have a glance of Sections 143 and 145 of the N.I. Act and the same read thus: “143. Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials. Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees. Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code. (2) The trial of a case under this section shall, so far as practicable, consistently with the interest of justice, be continued from day to day until its conclusion, unless the Court finds the adjournment of the trial beyond the following day to be necessary for reasons to be recorded in writing. (3) Every trial under this Section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of 10 the complaint. 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.” 10. It is required to be noted that in a given case, the Magistrate may even refuse to take such affidavit on record, if any exception is made out. Considering the scheme of the Act, in our view, it cannot be said that simply because the complainant is permitted to give evidence by way of an affidavit, the right of the accused to a fair trial is denied in any manner. The accused is entitled to cross-examine the said witness on such affidavit. Not only that, in a given case the accused may ask the concerned Court not to take such affidavit on record, if any exception is made out. Proper safeguards are already provided in the N.I. Act in this behalf to the accused. It cannot be said that the provision by which the complainant is permitted to tender his evidence by way of affidavit is violative of Article 21 of the Constitution of India in any manner. The Magistrate is required to follow the procedure of summary trial and if a particular procedure is provided in the Act by which the complainant is permitted to give affidavit, in our view, it cannot prejudice the case of the 11 accused in any manner nor such a provision is violative of Article 21 of the Constitution of India nor it is violative of the provisions of Sections 141 and 142 of the Evidence Act. Even under Section 142 of the Evidence Act, leading questions can be asked with the permission of the Court in examination-in- chief. We agree with the submission of Mr. Khambata that in the affidavit, there is no question of putting any leading questions as no questions are put in such an affidavit. 11. So far as reference to the Supreme Court Judgment in the case of Varkey Joseph (supra) is concerned, the same was in connection with the murder trial, wherein, it was alleged that the prosecutor therein put leading questions to the witness on the material part of the evidence. Considering the said fact it was held by the Supreme Court that putting such leading questions offend right of the accused to fair trial under Article 21 of the Constitution of India and hence, it is not curable irregularity. So far as factual facts of the present case is concerned, as we pointed out earlier, there is no question of putting any leading questions, as the complainant is not offering himself for examination-in-chief instead, in lieu of examination-in-chief, he has tendered affidavit which is permissible under section 145 of the Act. 12. Mr. Khambata, learned Additional Solicitor General, relied upon the decision of the Supreme Court in the case of Ashoka Marketing Ltd. and 12 another v. Punjab National Bank and others1 to substantiate that when there is a special enactment, it will override the general law. In paras 50 and 51 it has been observed by the Supreme Court as under: “50. On such principle of statutory interpretation which is applied to be is contained in the latin maxim: leges posteriores priores conterarias abrogant (later laws abrogate earlier contrary laws). This principle is subject to the exception embodied in the maxim: generalia specialibus non derogant (a general provision does not derogate from a special one). This means that where the literal meaning of the general enactment covers enactment covers a situation for which specific provision is made by another enactment contained in an earlier Act, it is presumed that the situation was intended to continue to be dealt with by the specific provision rather than the later general one (Benion: Statutory Interpretation pp. 433-34). 51. The rationale of this rule is thus explained by this Court in the J.K. Cotton Spinning and Weaving Mills Co. Ltd. v. The State of Uttar Pradesh. (1961) 3 SCR 185: (AIR 1961 SC 1170): “The rule that general provisions should yield to specific provisions is not an arbitrary principle made by lawyers and Judges but springs from the common understanding of man and the common understanding of men and women that when the same person gives two directions one covering a large number of matters in general and another to only some of them his intention is that these latter directions should prevail as regards these while as regards all the rest the earlier directions should have effect.” (p. 194) (of SCR): (at p. 1174 of AIR).” 13. Relying upon the same it is submitted by Mr. Khambata that when special law is now enacted i.e. 138 of the Negotiable Instruments Act even otherwise general provisions of section 142 of the Indian Evidence Act is not 1 AIR 1991 SC 855 13 applicable to the such trial and proceedings. 14. Mr. Khambata has also relied upon the decision of the Supreme Court in case of Ameer Trading Corporation Ltd. vs. Shapoorji Data Processing Ltd.1 wherein the Supreme Court interpreted Order 18, Rule 4 Civil P.C. which was amended with effect from 01.07.2002 and held that in lieu of examination-in-chief of witness, affidavit as per Rule 4 is permissible. 15. At this stage, reference is required to be made to the judgment of this court, in case of KSL & Industries Ltd. vs. Mannalal Khandelwal & Anr.2 While considering the scheme of provisions of section 138 and 142, 145 of the Negotiable Instruments Act, the Division Bench of this Court after considering the Statement of Objects and Reasons of the Act held as under in paragraphs 37 to 39: “37. The Statement of Objects and Reasons of the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, as crystallised, is as under:- “The said provisions in the Negotiable Instruments Act, 1881, viz., Sections 138 to 142 in Chapter XVII, have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time-bound manner, in view of the procedure contained in the Act. The proposed amendments in the Act are made for early disposal of cases relating to dishonour of cheques, 1 AIR 2004 SC 355 2 2005 (2) All MR 581 14 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 Act. 38. Sub-section (1) of Section 145 gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. If this is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just exceptions, be read in evidence in any enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions. 39. We are clearly of the opinion that according to the language of Section 145 of the Act, the evidence (examination-in-chief) of the complainant can be given on affidavit, and thereafter, if the accused so desires, he/she may request the Court to call the complainant for cross- examination”. 16. A learned single Judge of this court in case of Peacock Industries Ltd., Udaipur and others vs. Budhrani Finance Ltd., Bombay and another1 held as under in paragraph 7 and the same reads thus. 7. The reference was answered in negative. It would be relevant to reproduce paragraphs 38, 39 and direction (b) in paragraph 40 in the judgment of the Division Bench, which read thus: “38. Sub-section (1) of section 145 gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. If this is made on affidavit, the same has to be accepted and such affidavit is required to be kept on record by the Court. The second part of sub-section (1) provides that the complainant may give his evidence on affidavit and may, subject to all just 1 2006 (5) Mh.LJ 162 15 exceptions, be read in evidence in any enquiry, trial or other proceeding. Thus, it is clear that once the evidence of the complainant is given on affidavit, it may be read in evidence in any enquiry, trial or other proceeding, and it may be subject to all just exceptions. 39. We are clearly of the opinion that according to the language of section 145 of the Act, the evidence (examination-in-chief) of the complainant can be given on affidavit, and thereafter, if the accused so desires, he/she may request the Court to call the complainant for cross- examination. 40.(b) The Court concerned must ensure that examination-in-chief, cross examination and re- examination of the complainant must be concluded within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the