@JUDGMENTTAG-ORDER
Mr. Sunil Kumar Sinha, J.@mdashThis revision is directed against the order dated 28-5-2010 passed in Criminal Revision No. 27/2010 by the Fourth Additional Session Judge (FTC), Raigarh. By the impugned order the learned Session Judge has directed the Trial Court to take evidence of the parties on the preliminary objection taken by the respondent/accused in a complaint u/s 138 of the Negotiable Instruments Act, 1881 pleading that the complaint itself was not maintainable, and to decide the same after taking evidence of both the parties at preliminary stage.
2. The facts, briefly stated, are as under :-
A complaint u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the ''N.I. Act or N.I. Act, 1881'') was filed by the applicant. This, came to be registered as Criminal Case No. 76/2008 of the Court of Judicial Magistrate, First Class, Raigarh. After the notice, the respondent took an objection by filing an application u/s 142 of the N.I. Act and prayed for dismissal of the complaint. The learned Trial Judge dismissed the above application. This order was challenged in Criminal Revision by the respondent. The Session Court took the view that for deciding the objection raised by the respondent under Sections 138(b) and 142, evidence of the Branch Manager of the concerned Bank would be necessary as the controversy raised in the objection could be resolved by such evidence, therefore, the learned Magistrate erred in law in dismissing the preliminary objection without taking the evidence. The leaned Magistrate ought to have recorded the evidence on the preliminary objection and then, the said objection would have been decided. Thus, the order passed by the learned Magistrate on 8-1-2010 rejecting the preliminary objection of the respondent was set-aside and it was directed by the Revisional Court to take evidence on preliminary objection and then to take a decision regarding maintainability of the complaint filed u/s 138 of the N.I. Act.
3. Mr. Roop Naik, learned Counsel appearing on behalf of the applicant, argued that the cases of Negotiable Instruments Act are to be tried summarily and there is no provision for recording evidence on preliminary objection, therefore, the direction issued by the Session Court is bad in law and the same deserves to be set-aside.
4. On the other hand, Mr. Abhishek Saraf, learned Counsel appearing on behalf of the respondent, opposed these arguments and supported the order passed by the Session Court.
5. I have heard learned Counsel for the parties and have also perused the records of the revision petition.
6. Section 143 of the N.I. Act, 1881 provides power of Court to try cases summarily. It reads as under :-
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 interests 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 the complaint.
7. The above provisions of Section 143 make it apparently clear that an offence u/s 138 shall be tried by a Judicial Magistrate First Class or by a Metropolitan Magistrate and provisions of Sections 262 to 265 (both inclusive) of the Code of Criminal Procedure, as far as may be, apply to the trial of such cases.
8. Section 262 to 265 falling in Chapter XXI of the Code of Criminal Procedure deal with summary trials. They are quoted as under :-
262. Procedure for summary trials.- (1) In trials under this Chapter, the procedure specified in this Code for the trial of summons case shall be followed except as hereinafter mentioned.
(2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.
263. Record in summary trials.- In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely :-
(a) the serial number of the case;
(b) the date of the commission of the offence;
(c) the date of the report or complaint;
(d) the name of the complainant (if any);
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of Section 260, the value of the property in respect of which the offence has been committed;
(g) the plea of the accused and his examination (if any);
(h) the finding;
(i) the sentence or other final order;
(j) the date on which proceedings terminated.
264. Judgment in cases tried summarily.- In every case tried summarily in which the accused does not plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding.
265. Language of record and judgment.- (1) Every such record and judgment shall be written in the language of the Court.
(2) The High Court may authorize any Magistrate empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such Magistrate.
9. Section 143 of the N.I. Act, 1881, begins with a non obstante clause, which makes clear that the enacting part of the Section, in case of conflict, has to be given an over-riding effect over the provision or Act mentioned in the non obstante clause. It is equivalent to saying that in spite of the provision or Act mentioned in the non obstante clause, the enactment following it will have its full operation or that the provisions embraced in the non obstante clause will not be an impediment for the operation of the enactment. Ordinarily, there is a close approximation between the ''non obstante clause'' and the enacting part of the section and the non obstante clause may throw some light as to the scope and ambit of the enacting part in the case of its ambiguity, but when the enacting part is clear its scope "cannot be cut down or enlarged" by resort to non obstante clause (Please see : Principles of Statutory Interpretation by Justice G.P. Singh, Sixth Edition, 1996, pp. 236 & 237).
10. In the N.I. Act, 1881 or in the above provisions of the Code of Criminal Procedure, we do not find any provision for recording evidence by the Court upon a preliminary objection taken by an accused. A provision, which does not find place in the procedural law specifically made for trial of a particular kind of offence under a particular enactment cannot be availed by a Court, because such an action in that behalf would be without jurisdiction or authority of the Court.
11. After going through the above provisions of the N.I. Act, 1881 as also the provisions of Code of Criminal Procedure, Sections 262 to 265 (both inclusive), we find that a direction to record evidence on a preliminary objection taken by an accused was not justified as the same would amount to enlarge jurisdiction of the Trial Court, which in fact is not vested with that Court in accordance with the procedural law. I am of the view that the same is totally impermissible and the direction issued by the learned Session Judge in this regard is wholly without jurisdiction.
12. For the foregoing reasons, the revision is allowed. The impugned order dated 28-5-2010 passed by the learned Session Judge is set-aside. The Trial Court is directed to dispose of the matter strictly in accordance the provisions of Section 143 of the N.I. Act, 1881 and as far as may be under provisions of Sections 262 to 265 (both inclusive) of the Code of Criminal Procedure.
13. Interim order granted on 27-7-2011 stands vacated.
14. No order as to cost.
