M/S. MANDVI CO-OP BANK LTD.versusNIMESH B. THAKORE

                     [2010] 1 S.C.R. 219

             M/S. MANDVI CO-OP BANK LTD.                             A
                                v.
                    NIMESH B. THAKORE
              (Criminal Appeal No. 72 of 2010 )
                     JANUARY 11, 2010
                                                                     B
     [TARUN CHATTERJEE AND AFTAB ALAM, JJ.]

     Negotiable Instruments Act, 1881:

     ss.145(1) and (2) -Affidavit of a deponent is in the nature     c
of examination-in-Chief - On being summoned under
s. 145(2), complainant or his witness whose evidence is given
on affidavit is not required to depose in examination-in-chief
all over again - Evidence Act, 1872 - s.165.

     ss. 145(1) and (2) - Applicability to the proceedings           D
pending on 6.2.2003, the date on which these sections were
inserted in the Act - Held: Applicable as these provisions are
procedural and not substantive in nature.

     s.145(1) - Right of accused to give evidence on affidavit       E
- Held: s.145(1) confers right on the complainant to give
evidence on affidavit - It does not speak of similar right being
conferred on the accused - On facts, High Court erred in
holding that not mentioning the accused along with the
complainant in sub-section (1) of s.145 was merely an                F
omission by the legislature that it could fill up - Interpretation
of Statutes.

     s.145(2) and s.296(2) CrPC - The two sections whether
identical - Held: The two sections are not identical - s.296(2)
deals with evidence of formal nature and is a part of elaborate G
procedure of regular trial under the Code while the object of
s.145(2), is to design a much simpler and swifter trial
procedure departing from time consuming trial procedure of

                              219                                    H
    220      SUPREME COURT REPORTS              [2010) 1 S.C.R.


A the Code - Code of Criminal Procedure, 1973 - s.296(2).

          Interpretation of Statutes:

       It is not permissible for the Cowt to make additions in
  the law and to read into it something that is just not there -
B Negotiable Instruments Act, 1881 - s.145(1).

       The questions which arose for consideration in these
  appeals were whether the right of the accused under
  Section 145(2) of Negotiable Instruments Act, 1881 is
c limited to cross-examination of complainant or his
  witness giving evidence on affidavit or is it open to the
  accused to insist that notwithstanding the evidence
  earlier given on affidavit, on coming to the court the
  complainant or his witness ought to first give deposition
0 in examination-in-chief before being cross-examined by
  him; whether the provisions of sub-sections (1) and (2)
  of Section 145 of the Act would apply to proceedings that
  were pending on February 6, 2003, the date on which
  those provisions were inserted in the Act; and whether
E the right to give evidence on affidavit as provided to the
  complainant under section 145(1) of the Act is also
  available to the accused.

          Disposing of the appeals, the Court

F      HELD: 1.1. The provisions of the newly inserted
  Chapter XVII in the Negotiable Instruments Act, 1881, with
  effect from April 1, 1989, brought in a veritable deluge of
  cases in the criminal court system. In the metropolitan
  cities and the commercial centres of the country, it almost
G appeared that the main function of the Magistrate's court
  was to recover monies on behalf of parties on the wrong
  end of the commercial transactions that had gone sour.
  Complaints under section 138 of the Act came to be filed
  in such large numbers that it became impossible for the
H courts to handle them within a reasonable time and it also
MANDVI CO-OP BANK LTD. v. NI MESH B. THAKORE .221

had a highly adverse effect on the court's normal work A
in ordinary criminal matters. A remedial measure was
urgently required and the legislature took action by
introducing further amendments in the Act by the
Negotiable Instruments (Amendment and Miscellaneous
Provisions) Act, 2002. The 2002 amend.ment inserted in B
the Act for the first time sections 143 to 147 besides
bringing about a number of changes in the existing
provisions of sections 138 to 142. Section 143 gave to the
court the power to try cases summarily; section 144
provided for the mode of service of summons; section c
145 made it possible for the complainant to give his
evidence on affidavit; section 146 provided that the
bank's slip would be pr!ma facie evidence of certain facts
and section 147 made the offences under the Act
compoundable. [Para 13] [234-C-H]                          0
     1.2. The provisions of sections 143, 144, 145 and 147
expressly departed from and overrode the provisions of
the Code of Criminal Procedure, the main body of
adjective law for criminal trials. The provisions of section
146 similarly depart from the principles of the Indian E
Evidence Act. The procedure of summary trials is adopted
under section 143 subject to the qualification "as far as
possible", thus, leaving sufficient flexibility so as not to
affect the quick flow of the trial process. Even while
following the procedure of summary trials, the non- F
obstante clause and the expression "as far as possible"
used in section 143 coupled with the non-obstante
clause in section 145 allows for the evidence of the
complainant to be given on affidavit, that is, in the
absence of the accused. But the affidavit of the G
complainant (or any of his witnesses) may be read in
evidence "subject to all just exceptions". In other words,
anything inadmissible in evidence, e.g., irrelevant facts or
hearsay matters would not be taken in as evidence, even
though stated on affidavit. Section 146, making a major H
   222     SUPREME COURT REPORTS              [2010) 1 S.C.R.

A departure from the principles of the Evidence Act
  provides that the bank's slip or memo with the official
  mark showing that the cheque was dishonoured would
  by itself give rise to the presumption of dishonour of the
  cheque, unless and until that fact was disproved. [Para
B 16) [240-A-H; 241-A-B)

        1.3. Sections 143 to 147 were designed especially to
  lay down a much simplifie~ procedure for the trial of
  dishonoured cheque cases with the sole object that the
  trial of those cases should follow a course even swifter
C than a summary trial. The claim of the accused that on
  being summoned under section 145(2), the complainant
  or any of his witnesses whose evidence is given on
  affidavit must be made to depose in examination-in-chief
  all over again plainly appears to be a demand for
D meaningless duplication, apparently aimed at delaying
  the trial. In the event an application is made by the
  accused, the court would be obliged to summon the
  person giving evidence on affidavit in terms of section
  145(1) without having any discretion in the matter. It is
E clear that Section 137 of the· Evidence Act does not define
  "examine" to mean and include the three kinds of
  examination of a witness; it simply defines "examination-
  in-chief", "cross-examination" and "re-examination".
  What section 145(2) of the Act says is simply that the
F court may, at its discretion, call a person giving his
  evidence on affidavit and examine him as to the facts
  contained therein. But if an application is made either by
  the prosecution or by the accused, the court must call the
  person giving his evidence on affidavit, again to be
G examined as to the facts contained therein. What would
  be the extent and nature of examination in each case is
  a different matter and that has to be reasonably
  construed in light of the provision of section 145(1) and
  having regard to the object and purpose of the entire
H scheme of sections 143 to 146. The scheme of sections
MANDVI CO-OP BANK LTD. v. NIM ESH B. THAKORE 223


143 to 146 does not in any way affect the judge's powers A
under section 165 of the Evidence Act. As a matter of fact,
section 145(2) expressly provides that the court may, if it
thinks fit, summon and examine any person giving
evidence on affidavit. The affidavit of the person S<>'
summoned that is already on the record is obviously in B
the nature of examination-in-chief. Hence, on being
summoned on the application made by the accused the
deponent of the affidavit (the complainant or any of his
witnesses) can only be subjected to cross-examination
as to the facts stated in the affidavit. In so far as the c
prosecution is concerned the occasion to summon any
of its witnesses who has given his evidence on affidavit
may arise in two ways. The prosecution may summon a
person who has given his evidence on affidavit and has
been cross-examined for "re-examination". The
                                                            0
prosecution may also have to summon a witness whose
evidence is given on affidavit in case objection is raised
by the defence regarding the validity and/or sufficiency
of proof of some document(s) submitted along with the
affidavit. In that event the witness may be summoned to E
appear before the court to cure the defect and to have
the document(s) properly proved by following the correct
legal mode. [Paras 20 and 22] [243-C-F; 245-B-H; 246-A-
C]
    Dental Council of India vs. Hari Prakash and Ors., (2001)   F
8 SCC 61 and Nathi Devi vs. Radha Devi, (2005) 2 SCC 271;
Raghunath Rai Bareja vs. Punjab National Bank, (2007) 2
sec 230, referred to.
     1.4. The submission that since section 145(2) is
identical to section 296(2) Cr.P.C., it shouid be interpreted   G
in light of the legislative history of section 296(2) is
without merit. Moreover, the crucial difference between
section 296(2) Cr.P.C. and section 145(2) of the Act is that
the former deals with the evidence of a formal nature
                                                                H
    224     SUPREME COURT REPORTS             [201 OJ 1 S.C.R.

A whereas under the latter provision, all evidences
  including substantive evidence may be given on affidavit.
  Section 296 is part of the elaborate procedure of a regular
  trial under the Code while the whole object of section
  145(2) of the Act is to design a much simpler and swifter
B trial procedure departing from the elaborate and time
  consuming trial procedure of the Code. Hence,
  notwithstanding the apparent verbal similarity between
  section 145(2) of the Act and section 296(2) Cr.P.C., it
  would be completely wrong to interpret the true scope
c and meaning of the one in the light of the other. [Paras
  24 and 25] [246-G-H; 247-C-F]
         State of Punjab v. Naib Din (2001) 8 SCC 578,
    distinguished.
o        1.5. The evidence given on affidavit by the
    complainant is "subject to all just exceptions". This
    simply means that the evidence given on affidavit must
    be admissible and it must not include inadmissible
    materials such as facts not relevant to the issue or any
E   hearsay statements. In case the complainant's affidavits
    contain statements that are not admissible in evidence it
    is always open to the accused to point those out to the
    court and the court would then surely deal with the
    objections in accordance with law. There is no merit in
F   submission that when the complainant gives his
    evidence on affidavit, then the documents produced
    along with the affidavit(s) are not proved automatically
    and unless the accused admits those documents under
    section 294 Cr.P.C. the documents must be proved by
    oral testimony. In case, however, the accused raises any
G   objections with regard to the validity or sufficiency of
    proof of the documents submitted along with the affidavit
    and if the objections are sustained by the court it is
    always open to the prosecution to have the concerned
    witness summoned and get the lacuna in the proof of the
H   documents corrected. [Paras 26 and 27] [248-A-F]
MANDVI CO-OP BANK LTD. v. NIM ESH B. THAKORE 225

     2. The provisions of Sections 143 to 147 do not take     A
away any substantive rights of the accused. Those
provisions are not substantive but procedural in nature
and would, therefore, undoubtedly, apply to the cases
that were pending on the date the provisions came into
force. [Para 28) [248-F-G]                                     B

    Gurbachan Singh v. Satpal Singh and Ors. 1990 (1) SCC
445, relied on.

     3. On a bare reading of Section 143, it is clear that the
legislature provided for the complainant to give his C
evidence on affidavit and did not provide for the accused
to similarly do so. High Court thought that not mentioning
the accused along with the complainant in sub-section
(1) of section 145 was merely an omission by the
legislature that it could fill up without difficulty. There are D
two errors apparent in the reasoning of the High Court.
First, if the legislature in their wisdom did not think "it
proper to incorporate a word 'accused' with the word
'complainant' in section 145(1)...... ", it was not open to
the High Court to fill up the self perceived blank. E
Secondly, the High Court was in error in drawing an
analogy between the evidences of the complainant and
the accused in a case of dishonoured cheque. The case
of the complainant in a complaint under section 138 of
the Act would be based largely on documentary F
evidence. The accused, on the other hand, in a large
number of cases, may not lead any evidence at all and
let the prosecution stand or fall on its own evidence. In
case the defence does lead any evidence, the nature of
its evidence may not be necessarily documentary; in all G
likelihood the defence would lead other kinds of
evidences to rebut the presumption that the issuance of
the cheque was not in the discharge of any debt or
liability. This is the basic difference between the nature
of the complainant's evidence and the evidence of the'
                                                                H
    226      SUPREME COURT REPORTS                   [2010) 1 S.C.R.


A accused in a case of dishonoured cheque. It is, therefore,
  wrong to equate the defence evidence with the
  complainant's evidence and to extend the same option
  to the accused as well. It is not permissible for the court
  to make additions in the law and to read into it something
B that is just not there. [Paras 32 and 33] [251-A-H; 252-A-
  B]
      Union of India and Anr. v. Deoki Nandan Aggarwal 1992
  Supp. (1) SCC 323; Raghunath Rai Bareja and Anr. v.
  Punjab National Bank and Ors., (2007) 2 SCC 230; Duport
C Steels Ltd. vs. Sirs, 1980 1 All ER 534, relied on.

                         Case Law Reference:
          (2001) 8 sec s1         referred to             Para 21
D         (2005) 2 sec 211        referred to             Para 21
          (2001) 2 sec 230        referred to             Para 21
          (2001) 8 sec 578        distinguished           Para 23
          1990 (1) sec 445        relied on               Para 23
E
          1992 Supp. 1 SCC 323 relied on                  Para 33
          (2007) 2 sec 230        relied on               Para 34
          1980 1 All ER 534       relied on               Para 35
F
        CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
    No. 72 of 2010.

      From the Judgment & Order dated 14.7.2006 of the High
  Court of Judicature at Bombay in Criminal Writ Petition No.
G 2302 of 2005 ..

                               WITH

    Crl. A. No. 73, 74, 75, 76, 77 and 78 of 2010.

H         Ranjit Kumar, Bhargava V. Desai, Rahul Gupta, Reema
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 227

Sharma, Jatin Zaveri, Gagan Chhabra, Dr. Vipin Gupta,                 A
Siddharth Bhatnagar, Pawan Kumar Bansal, T. Mahipal, Jay
Savla, Anmol Doijode, Manju Sharma, V.B. Joshi, Kailash
Pandey, Pragya S. Baghel, Ravi Naik, Manik Karanjawala,
Sonia Nigam, Rachna Gupta, Niraj Sharma and Ravindra
Keshavrao Adsure for the appearing parties.                           B

    The Judgment of the Court was delivered by

     AFTAB ALAM, J. 1. Leave granted

     2. In these appeals we are required to consider the              c
special provisions laid down by section 145 of the Negotiable
Instruments Act, 1881 ('the Act', hereinafter) for a dishonoured
cheque trial and to consider how far certain assertions made
by the accused are in accordance with the provisions contained
in the two sub-sections of that section.                              D
      3. The High Court had before it a large number of writ
petitions and applications under section 482 of the Code of
Criminal Procedure. Most of those petitions were filed on behalf
of the accused but a few were also at the instance of the
complainants. On the basis of the grievances made and reliefs         E
prayed for in those petitions the High Court framed the following
two questions as arising for its consideration:

    "(A) Whether sub-section (2) of section 145 of the
    Negotiable Instruments Act, 1881, (for short, "the Act")          F
    confers an unfettered right on the complainant and the
    accused to apply to the court seeking direction to give oral
    examination-in-chief of a person giving evidence on
    affidavit, even in respect of the facts stated therein and that
    if such a right is exercised, whether the court is obliged to     G
    examine such a person in spite of the mandate of section
    145(1) ofthe Act?

     (B) Whether the provisions of section 145 of the Act, as
     amended by the Negotiable Instruments (Amendment and
                                                                      H
    228      SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A         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
B         operate retrospectively? "

         4. Answering the questions after a detailed and careful
    consideration of all the relevant provisions and earlier decisions
    of courts, the High Court held that the person (complainant or
    his witness) giving evidence on affidavit may be summoned by
C   the court for putting questions as envisaged under section 165
    of the Evidence Act (vide paragraph 24 of the judgment). He
    would also be summoned on an application made by the
    accused but the right of the accused is limited to cross-
    examination of the witness. In terms of section 145(2) the
D   accused can undoubtedly cross-examine a person whose
    evidence is given on affidavit but the accused cannot insist that
    the witness, on coming to court, should first depose in
    examination-in-chief even in respect of matters which are
    already stated by him on affidavit (vide paragraph 25 of the
E   judgment). The High Court further explained that for the
    prosecution the occasion to summon any of its witnesses who
    have given their evidence on affidavit may arise in two ways.
    The prosecution may summon a person who has given his
    evidence on affidavit and has been cross-examined for "re-
F   examination". This right of the prosecution, the High Court
    observed, was not in dispute before it. The prosecution may
    also have to summon a witness whose evidence is given on
    affidavit in case objection is raised by the defence regarding
    the validity and/or sufficiency of proof of some document(s)
G   submitted along with the affidavit. In that event the witness may
    be summoned to appear before the court to cure the defect and
    to have the document(s) properly proved by following the
    correct legal mode (vide paragraph 26 of the judgment).

          5. The High Court then considered the claim of the
H
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 229
              [AFTAB ALAM, J.]

accused that any evidence in defence, like the complainant's            A
evidence, may also be given on affidavit. It upheld the claim
observing as follows:

    " .... Merely because, section 145(1) does not expressly
    permit the accused to do so, does not mean that the
                                                                        8
    Magistrate cannot allow the accused to give his evidence
    on affidavit by applying the same analogy unless there is
    just and reasonable ground to refuse such permission.
    There is no express bar on ttie accused to give evidence
    on affidavit either in the Act or in the Code ......... I find no   C
    justified reason to refuse permission to the accused to
    give his evidence on affidavit subject to the provisions
    contained in sections 315 and 316 of the Code."

      6. Coming then to the question (8), the High Court had no
difficulty in holding that the provisions of sub-sections (1) and       D
(2) of section 145 were not substantive but only procedural in
nature and, therefore, those provisions would be applicable to
the cases pending on the date they came into force.

     7. Apart from considering the two questions the High Court         E
also laid down, on the request of the parties, a number of
guidelines (vide sub-paragraphs (a) to (r) of paragraph 45 of
the judgment) in regard to the procedure that the trial court, the
complainant and the accused should follow in a dishonoured
cheque trial on a complaint made under section 138 of the Act.          F
We may have to refer to some of those guidelines later, at an
appropriate place in this judgment.

    8. The High Court judgment has given rise to these seven
appeals, in which the following three issues arise for
consideration by this court:                                            G

      1.       The extent of the right of the accused under section
               145(2) of the Act: whether the right of the accused
               is limited to cross-examination of any person giving
               evidence on affidavit or is it open to the accused       H


           ,
    230        SUPREME COURT REPORTS               [2010] 1 S.C.R.


A               to insist that notwithstanding the evidence earlier
                given on affidavit, on coming to the court the
                complainant or his witness should first give
                deposition in examination-in-chief before being
                cross-examined by him? (appeals arising from
B               SLP (Crl.) No.4760/2006, SLP (Crl.) No.5689/2006,
                SLP (Crl.) No.1106/2007, SLP (Crl.) No.6442/2007,
                SLP (Crl.) No.6443/2007, SLP (Crl.) No.6703/
                2007)

          2.    Whether the provisions of sub-sections (1) and (2)
c               of section 145 of the Act would apply to
                proceedings that were pending on February 6,
                2003, the date on which those provisions were
                inserted in the Act? (appeal arising from SLP (Crl.)
                No.4760/2006).
D
          3.    Whether the right to give evidence on affidavit as
                provided to the complainant under section 145(1)
                of the Act is also available to the accused? (appeal
                arising from SLP (Crl.) No.3915/2006)
E
        9. For a proper appreciation of the issues it would be
  necessary to examine the relevant legal provisions and to
  ascertain the object and reasons for which those provisions
  were brought into existence by making amendments in the
F Negotiable Instruments Act, 1881. The Negotiable Instruments
  Act was amended first by the Banking Public Financial
  Institutions and Negotiable Instruments Laws (Amendment)
  Act, 1988 and a second time by the Negotiable Instruments
  (Amendment and Miscellaneous Provisions) Act, 2002. The
  first amendment inserted Chapter XVII in the Act, comprising
G sections 138 to 143. Section 138 made, for the first time in the
  legislative history of the country, the issuance of a cheque by
  any person in discharge of any debt or liability owed by him to
  its holder, that was not honoured by the banker because of
  insufficiency of funds in the account, a penal offence for the
H drawer that would make him liable to punishment with
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 231
              [AFTAB ALAM, J.]
imprisonment that might extend to one year (now, two years A
after the second amendment with effect from February 6, 2003)
or with fine that might extend to twice the amount of the cheque
or both; the four clauses of the proviso then laid down the
preconditions to attract the section, as safeguards for the
honest drawer. Section 139 created a presumption (rebuttable!) B
that the cheque was issued by the drawer in discharge of any
debt or liability owed by him to its holder. Section 140 provided
that it would not be open to the accused in a prosecution under
section 138 to take the plea th~t when he issued the cheque
he had no reason to believe that on presentation, the cheque c
may be dishonoured for the reasons stated in that section.
Section 141 dealt with offences by companies. Section 142
laid down the conditions subject to which alone the court would
take cognizance of any offence punishable under section 138
of the Act.
                                                                  D
      10. The statement of objects and reasons appended to the
bill explaining the provisions of the new chapter stated as
follows:

      ''This clause (clause (4) of the Bill] inserts a new Chapter E
     XVI I in the Negotiable Instruments Act, 1881. The
     provisions contained in the new Chapter provide that
     where any cheque drawn by a person for the discharge of
     any liability is returned by the bank unpaid for the reason
     of the insufficiency of the amount of money standing to the F
     credit of the account on which the cheque was drawn or
     for the reason that it exceeds the arrangements made by
     the drawer of the cheque with the bankers for that. account,
     the drawer of such cheque shall be deemed to have
     committed an offence. In that case, the drawer, without G
   . prejudice to the other provisions of the said Act, shall be
     punishable with imprisonment for a term which may extend
     to one year, or with fine which may extend to twice the
     amount of the cheque, or with both.
                                                                  H
    232      SUPREME COURT REPORTS                    [2010] 1 S.C.R.


A               The provisions have also been made that to
          constitute the said offence-

          (a) such cheque should have been presented to the bank
          within a period of six months of the date of its drawal or
          within the period of its validity, whichever is earlier; and
B
          (b) the payee or holder in due course of such cheque
          should have made a demand for the payment of the said
          amount of money by giving a notice, in writing, to the
          drawer of the cheque within fifteen days of the receipt of
c         the information by him from the bank regarding the return
          of the cheque unpaid; and

          (c) the drawer of such cheque should have failed to make
          the payment of the said amount of money to the payee or
D         the holder in due course of the cheque within fifteen days
          of the receipt of the said notice.

          It has also been provided that it shall be presumed, unless
          the contrary is proved, that the holder of such cheque
          received the cheque in the discharge of a liability.
E         Defences which may or may not be allowed in any
          prosecution for such offence have also been provided to
          make the provisions effective. Usual provision relating to
          offences by companies has also been included in the said
          new Chapter. In order to ensure that genuine and honest
F         bank customers are not harassed or put to inconvenience,
          sufficient safeguards have also been provided in the
          proposed new Chapter. Such safeguards are-

          (a) that no court shall take cognizance of such offence
G
          except on a complaint, in writing, made by the payee or
          the holder in due course of the cheque;

          (b) that such complaint is made within one month of the
          date on which the cause of action arises; and

H         (c) that no court inferior to that of a Metropolitan Magistrate
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 233
              [AFTAB ALAM, J.]
     or a Judicial Magistrate or a Judicial Magistrate of the first   A
     class shall try any such offence."

      11. The speech of the Minister of Finance on December
2, 1988 in course of the debate on the Bill in the Lok Sabha
tells us that Chapter XVII was inserted in the Act, in light of the B
Report submitted in the year 1975 by the Committee on Banking
Laws headed by Dr. Rajamannar. It appears that in course of
the debate some members had expressed the view that the
provisions of Chapter XVII sought to be inserted in the Act,
contained very abnormal, rather very dangerous provisions, in C
that a kind of civil liability is supposed to be converted into a
kind of criminal act which would have far reaching
consequences. Dispelling the apprehensions of those
members the Minister pointed out that the proposed
amendments were along the same lines as the law prevailing
in other countries such as the UK, the USA, Belgium, Portugal, D
Argentina, etc. Further, in regard to the object of the provisions,
the Minister stated as follows:

    "In fact, the whole purpose of bringing about this provision
    is to make the drawing of cheque a regular mode of                E
    payment. Unfortunately, today if a cheque is given to a
    party, they will not consider it a sufficient means of
    payment, they will insist that unless the cheque is encashecl,
    they will not take that as a kind of payment made."
                                                                      F
                                               (emphasis added)

     12. The Minister then elaborated on the safeguards
provided in the law to save an honest drawer from coming
under the rigours of the section due to any bona fide mistake
and finally went on to say as follows:                                G

    "But in spite of time for payment and all other provisions
    that are made, if the party is not able to make good the
    amount of money which he owes to a particular party and
    in spite of the notice also he does not act, the conclusion       H
    234       SUPREME COURT REPORTS                  [2010] 1 S.C.R.

A         is inescapable that he will be prosecuted, legal action will
          have to be taken. It is for the court to take a decision,
          whether he be imprisoned for one year, or double the
          amount that would be paid as fine or both things will have
          to be taken together. Ultimately, it is for the court to take
B         a decision. But these are the provisions which have been
          provided for so that the parties drawing the cheques are
          careful enough to see that there are enough resources
          available in their bank account and if a cheque is drawn,
          it will not be returned."
c                                                  (emphasis added)

        13. The provisions of the newly inserted Chapter XVII, on
  coming into force with effect from April 1, 1989, brought in a
  veritable deluge of cases in the criminal court system. In the
D metropolitan cities and the commercial centres of the country,
  it almost appeared that the main function of the Magistrate's
  court was to recover monies on behalf of parties on the wrong
  end of the commercial transactions that had gone sour.
  Complaints under section 138 of the Act came to be filed in
E such large numbers that it became impossible for the courts
  to handle them within a reasonable time and it also had a highly
  adverse effect on the court's normal work in ordinary criminal
  matters. A remedial measure was urgently required and the
  legislature took action by introducing further amendments in the
F Act by the Negotiable Instruments (Amendment and
  Miscellaneous Provisions) Act, 2002. The 2002 amendment
  inserted in the Act for the first time sections 143 to 147 besides
  bringing about a number of changes in the existing provisions
  of sections 138 to 142. Section 143 gave to the court the power
G to try cases summarily; section 144 provided for the mode of
  service of summons; section 145 made it possible for the
  complainant to give his evidence on affidavit; section 146
  provided that the bank's slip would be prima facie evidence of
  certain facts and section 147 made the offences under the Act
H compoundable.
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 235
              [AFTAB ALAM, J.)
      14. The statement of objects and reasons appended to the    A
bill stated as follows:

    "The Negotiable Instruments Act, 1881 was amended by
    the Banking, Public Financial Institutions and Negotiable
    Instruments Laws (Amendment) Act, 1988 wherein a new          B
    Chapter XVII was incorporated for penalties in case of
    dishonour of cheques due to insufficiency of funds in the
    account of the drawer of the cheque. These provisions
    were incorporated with a view to encourage the culture of
    use of cheques and enhancing the credibility of the
    instrument. The existing provisions in the Negotiable         C
    Instruments Act, 1881, namely, sections 138 to 142 in
    Chapter XVI I 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       D
    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.

    2. A large number of cases are reported to be pending         E
    under sections 138 to 142 of the Negotiable Instruments
    Act in various courts in the country. Keeping in view the
    large number of complaints under the said Act pending in
    various courts, a Working Group was constituted to review
    section 138 of the Negotiable Instruments Act, 1881 and       F
    make recommendations as to what changes were needed
    to effectively achieve the purpose of that section.

    3. The recommendations of the Working Group along with
    other representations from various institutions and
    organisations were examined by the Government in              G
    consultation with the Reserve Bank of India and other legal
    experts, and a Bill, namely, the Negotiable Instruments
    (Amendment) Bill, 2001 was introduced in the Lok Sabha
    on 24th July, 2001. The Bill was referred to Standing
    Committee on Finance which made certain                       H
    236       SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A         recommendations in its report submitted to Lok Sabha in
          November, 2001.

          4. Keeping in view the recommendations of the Standing
          Committee on Finance and other representations, it has
          been decided to bring out, inter alia, the following
B
          amendments in the Negotiable Instruments Act, 1881,
          namely:-

          (i) to increase the punishment as prescribed under the Act
          from one year to two years;
c
          (ii) to increase the period for issue of notice by the payee
          to the drawer from 15 days to 30 days;

          (iii) to provide discretion to the court to waive the period
          of one month, which has been prescribed for taking
D         cognizance of the case under the Act;

          (iv) to prescribe procedure for dispensing with
          preliminary evidence of the complainant;

E         (v) to prescribe procedure for servicing of summons to the
          accused or witness by the court through speed post or
          empanelled private couriers;

          (vi) to provide for summary trial of the cases under the Act
          with a view to speeding up disposal of cases;
F
          (vii) to make the offences under the Act compoundable;

          (viii) to exempt those directors from prosecution under
          section 141 of the Act who are nominated as directors of
          a company by virtue of their holding any office or
G
          employment in the Central Government or State
          Government or a financial corporation owned or controlled
          by the Central Government, or the State Government, as
          the case may be;

H         (ix) to provide that the Magistrate trying an offence shall
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 237
              [AFTAB ALAM, J.]

    have power to pass sentence of imprisonment for a term         A
    exceeding one year and amount of fine exceeding five
    thousand rupees;

    (x) to make the Information Technology Act, 2000
    applicable to the Negotiable Instruments Act,1881 in           B
    relation to electronic cheques and truncated cheques
    subject to such modifications and amendments as the
    Central Government, in consultation with the Reserve Bank
    of India, considers necessary for carrying out the purposes
    of the Act, by notification in the Official Gazette; and
                                                                   c
    (xi) to amend definitions of "bankers' books" and "certified
    copy" given in the Bankers' Books Evidence Act, 1891.

     5. The proposed amendments in the Act are aimed at
    early disposal of cases relating to dishonour of cheques,      o
    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 Negotiable Instruments Act,
    1881.
                                                                   E
    6. The Bill seeks to achieve the above objects."

                                            (emphasis added)

     15. Though, in these appeals, we are mainly concerned         F
with the provisions of section 145, it would be useful here to
take a look at all the five sections introduced by the 2002
amendment.

    "143. Power of court to try cases summarily.
                                                                   G
    (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
                                                                   H
    238       SUPREME COURT REPORTS                    [2010] 1 S.C.R.


A         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
B         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
c         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
D         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
E
          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
F         expeditiously as possible and an endeavour shall be made
          to conclude the trial within six months from the date of filing
          of the complaint.

          144. Mode of service of summons.
G         (1) Notwithstanding anything contained in the Code of
          Criminal Procedure, 1973 (2 of 1974), and for the
          purposes of this Chapter, a Magistrate issuing a summons
          to an accused or a witness may direct a copy of summons
          to be served at the place where such accused or witness
H         ordinarily resides or carries on business or personally
MANDVI CO-OP BANK LTD. v. NI MESH B. THAKORE 239
              [AFTAB ALAM, J.]
   works; for gain, by speed post or by such courier services           A
   as are approved by a Court of Session.

   (2) Where an acknowledgment purporting to be signed by
   the

   accused or the witness or an endorsement purported to                B
   be made by any person authorised by the postal
   department or the courier services that the accused or the
   witness refused to take delivery of summons has been
   received, the court issuing the summons may declare that
   the summons has been duly served.                                    C

    145. Evidence on affidavit.

   (1) Notwithstanding anything contained in the Code of
   Criminal Procedure, 1973 (2of1974), the evidence of the
   complainant may be given by him on affidavit and may, 0
   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                E
   any person giving evidence on affidavit as to the facts
   contained therein.

   146. Bank's slip prima facie evidence of certain facts.

   The court shall, in respect of every proceeding under this           F
   Chapter, on production of bank's slip or memo having
   thereon the official mark denoting that the cheque has been
   dishonoured, presume the fact of dishonour of such
   cheque, unless and until such fact is disproved.
                                                                        G
   147. Offences to be compoundable.

   Notwithstanding anything contained in the Code of
   Criminal Procedure, 1973 (2 of 1974), every offence
   punishable under this Act sha!! be compoundable."
                                                                        H
     240      SUPREME COURT REPORTS                      [2010] 1 S.C.R.


A           16. It may be noted that the provisions of sections 143,
      144, 145 and 147 expressly depart from and override the
      provisions of the Code of Criminal Procedure, the main body
      of adjective law for criminal trials. The provisions of section 146
      similarly depart from the principles of the Indian Evidence Act.
 B Section 143 makes it possible for the complaints under section
      13£3 of the Act to be tried in the summary manner, except, of
      course, for the relatively small number of cases where the
      Magistrate feels that the nature of the case is such that a
      sentence of imprisonment for a term exceeding one year may
 C have to be passed or that it is, for any other reason, undesirable
      to try the case summarily. It is, however, significant that the
      procedure of summary trials is adopted under section 143
      subject to the qualification "as far as possible'', thus, leaving
      sufficient flexibility so as not to affect the quick flow of the trial
      process. Even while following the procedure of summary trials,
 0
      the non-obstante clause and the expression "as far as
      possible" used in section 143 coupled with the non-obstante
     clause in section 145 allow for the evidence of the complainant
     to be given on affidavit, that is, in the absence of the accused.
     This would have been impermissible (even in a summary trial
E under the Code of Criminal Procedure) in view of sections 251
     and 254 and especially section 273 of the Code. The accused,
     however, is fully protected, as under sub-section (2) of section
      145 he has the absolute and unqualified right to have the
     complainant and any or all of his witnesses summoned for
F cross-examination. Sub-section (3) of section 143 mandates
     that the trial would proceed, as far as practicable, on a day-to-
     day basis and sub-section (4) of the section requires the
     Magistrate to make the endeavour to conclude the trial within
     six months from the date of filing of the complaint. Section 144
G makes the process of service of summons simpler and cuts
     down the long time ordinarily consumed in service of summons
     in a regular civil suit or a criminal trial. Section 145 with its non-
     obstante clause, as noted above, makes it possible for the
     evidence of the complainant to be taken in the absence of the
1:;1 accused. But the affidavit of the complainant (or any of his
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 441
              [AFTAB ALAM, J.]
witnesses) may be read in evidence "subject to all just                   A
exceptions''. In other words, anything inadmissible in evidence,
e.g., irrelevant facts or hearsay matters would not be taken in
as evidence, even though stated on affidavit. Section 146,
making a major departure from the principles of the Evidence
Act provides that the bank's slip or memo with the official mark          B
showing that the cheque was dishonoured would by itself give
rise to the presumption of dishonour of the cheque, unless and
until that fact was disproved. Section 147 makes the offences
punishable under the Act, compoundable.

       17. It is not difficult to see that sections 142 to 147 lay down
                                                                          c
a kind of a special code for the trial of offences under Chapter
XVII of the Negotiable Instruments Act and sections 143 to 147
were inserted in the Act by the Negotiable Instruments
(Amendment and Miscellaneous Provisions) Act, 2002 to do
away with all the stages and processes in a regular criminal              D
trial that normally cause inordinate delay in its conclusion and
to make the trial procedure as expeditious as possible without
in any way compromising on the right of the accused for a fair
trial.
                                                                          E
       18. Here we must take notice of the fact that cases under
section 138 of the Act have been coming in such great
multitude that even the introduction of such radical measures
to make the trial procedure simplified and speedy has been of
little help and cases of dishonoured cheques continue to pile             F
up giving rise to an unbearable burden on the criminal court
system. The Law Commission in its report number 213 sent to
the Union Minister for Law and Justice on November 24, 2008
advocated the setting up of Fast Track Magisterial courts for
dealing with the huge pendency of dishonoured cheque cases.               G
In paragraph 1.5 of the report it was stated as follows:

     "1.5. Over 38 lac cheque bouncing cases are pending in
     various courts in the country. There are 7,66,974 cases
     pending in criminal courts in Delhi at the Magisterial level
                                                                          H
     242          SUPREME COURT REPORTS                         i2010] 1 S.C.R.


A          as on 1st June, 2008. Out of this huge workload, a
           substantial portion is of cases under section 138 of the
           Negotiable Instruments Act which alone count for 5, 14,433
           cases (cheque bouncing). According to Gujarat High Court
           sources, there are approximately two lac cheque bouncing
B          cases all overt he State, with the majority of them (84,000
           cases) in Ahmedabad, followed by Surat, Vadodara and
           Rajkot. 73,000 cases were filed under section 138 of the
           Negotiable Instruments Act (cheque bouncing) on a single
           day by a private telecom company before a Bangalore
c          court, informed the Chief Justice of India, K. G.
           Balakrishnan, urging the Government to appoint more
           judges to deal with 1.8 crore pending cases in the country.
           The number of complaints which are pending in Bombay
           courts, seriously cast shadow on the credibility of our trade,
           commerce and business. Immediate steps have to be
D
           taken by all concerned to ensure restoration of the
           credibility of trade, commerce and business."

       19. The situation arising from the mounting arrears is so
  grave that in the 'Vision Statement' presented by the Union
E Minister for law and Justice to the Chief Justice of India in
  course of the National Consultation for strengthening the
  Judiciary towards reducing pendency and delays held on
  October 24, 2009, cases of dishonoured cheques were cited
  among one of the major bottlenecks in the criminal justice
F system. In paragraph 2 under the heading 'the Action Plan' it
  was stated as follows:

            "2.    Identification of Bottlenecks: Clearing the System

            1.     Studies have shown that cases under certain
G                  statutes and area of law are choking dockets of
    1.   on the date of the report, there were 5,91,818 cases pending in sub-ordinate
         courts of State of Maharashtra 1,57, 191 cases pending in the sub-ordinate
         courts of State of Karnataka, 1,10,311 cases pending in the sub-ordinate
         courts of State of Kerala and 5,14,433 cases in the sub-ordinate courts of
H        the State of Delhi under Section 138 of the Negotiable Instrument Act.
MANDVI CO-OP BANK LTD. v. NI MESH B. THAKORE 243
              [AFTAB ALAM, J.]
           \,
                magisterial and specialised courts, and the same     A
                need to be identified.

      2.        Bottlenecks shall be identified as follows:

                (a) Matrimonial cases.
                                                                     B
                (b) Cases under section 498A of the Indian Penal
                Code, 1860.

                (c) Cases under section 143 of the Negotiable
                Instrument Act, 1881.
                                                                     c
                (d) to (i) xxxxxxxxxx

       20. Once it is realized that sections 143 to 147 were
 designed especially to lay down a much simplified procedure
 for the trial of dishonoured cheque cases with the sole object      o
 that the trial of those cases should follow a course even swifter
 than a summary trial and once it is seen that even the special
1procedure failed to effectively and expeditiously handle the vast
•multitude of cases coming to the court, the claim of the accused
lthat on being summoned under section 145(2), the complainant        E
ior any of his witnesses whose evidence is given on affidavit
must be made to depose in examination-in-chief all over again
 'llainly appears to be a demand for meaningless duplication,
apparently aimed at delaying the trial.

      21. Nevertheless, the submissions made on behalf of the        F
 >arties must be taken note of and properly dealt with. Mr Ranjit
-<umar, learned Senior Advocate, appearing for the appellant
1n appeal arising from SLP (Crl.) No. 4760/2006 pointed out
rhat sub-section (2) of section 145 uses both the words, "may"
 ·with reference to the court) and "shall" (with reference to the    G
 >rosecution or the accused). It was, therefore, beyond doubt
1hat in the event an application is. made by the accused, the
-:ourt would be obliged to summon the person giving evidence
·>n affidavit in terms of section 145(1) without having any
                                                                     H
    244      SUPREME COURT REPORTS                   [2010] 1 S.C.R.


A discretion in the matter. There can be no disagreement with this
   part of the submission but the question is when the person who
   has given his evidence on affidavit appears in court, whether it
   is also open to the accused to insist that before cross-
   examining him as to the facts stated in the affidavit he must first
B depose in examination-in-chief and be required to verbally state
   what is already said in the affidavit. Mr. Ranjit Kumar referred
   to section 137 of the Indian Evidence Act, that defines
   "examination-in-chief", "cross-examination" and "re-
   examination" and on that basis sought to argue that the word
c "examine" occurring in section 145(2) must be construed to
   mean all the three kinds of examination of a witness. This,
   according to him, coupled with the use of the word "shall" with
   reference to the application made by the accused made it quite
  clear that a person giving his evidence on affidavit, on being
  summoned under section 145(2) at the instance of the accused
0
  must begin his deposition with examination-in-chief, before he
  may be· cross-examined by the accused. In this regard he
  submitted that section 145 did not override the Evidence Act
  or the Negotiable Instruments Act or any other law except the
  Code of Criminal Procedure. He further submitted that the plain
E language of section 145(2) was clear and unambiguous and
  was capable of only one meaning and, therefore, the provision
  must be understood in its literal sense and the High Court was
  in error in resorting to purposive interpretation of the provision.
  In support of the submission he relied upon decisions of this
F court in Dental Council of India vs. Hari Prakash and Ors.,
  (2001) 8 SCC 61 and Nathi Devi vs. Radha Devi, (2005) 2
  SCC 271. Mr. Siddharth Bhatnagar, learned counsel for the
  appellant in the appeal arising from SLP (Crl.) No. 1106/2007
  also joined Mr. Ranjit Kumar in the submission based on literal
G interpretation. He also submitted that ordinarily the rule of literal
  construction should not be departed from, particularly when the
  words of the statute are clear and unambiguous. He relied upon
  the decision in Raghunath Rai Bareja vs. Punjab National
  Bank, (2007) 2 sec 230.
H
MANDVI CO-OP BANK LTD. v. NIM ESH B. THAKORE 245
              [AFTAB ALAM, J.]
       22. We are completely unable to appreciate the. A
submission. The plea for a literal interpretation of section
145(2) is based on the unfounded assumption that the language
of the section clearly says that the person giving his evidence
on affidavit, on being summoned at the instance of the accused
must start his deposition in court with examination-in=chief. We B ·
find nothing in section 145(2) to suggest that. We may also
make it clear that section 137 of the Evidence Act does not
define "examine" to mean and include the three kinds of ·
examination of a witness; it simply defines "examination~in­
chief', "cross-examination" and "re-examination". What sectio~ . c
 145(2) of the Act says is simply this. The court may, at its
 discretion, call a person giving his evidence on affidavit and
examine him as to the facts contained therein. But if an
 application is made either by the prosecution or by the accused
the court must call the person giving his evidence on affidavit, 0
 again to be examined as to the facts contained therein. What
would be the extent and nature of examination in each case is
 a different matter and that has to be reasonably construed in
 light of the provision of section 145(1) and having regard to the
object and purpose of the entire scheme of sections 143 to 146. E
The scheme of sections 143 to 146 does not in any way affect
the judge's powers under section 165 of the Evidence Act. As
a matter of fact, section 145(2) expressly provides that the court
may, if it thinks fit, summon and examine any person giving
evidence on affidavit. But how would the person giving evidence
on affidavit be examined, on being summoned to appear before F
the court on the application made by the prosecution or the
accused? The affidavit of the person so summoned that is
already on the record is obviously in the nature of examination-
in-chief. Hence, on being summoned on the application made
by the accused the deponent of the affidavit (the complainant G
or any of his witnesses) can only be subjected to cross-
examination as to the facts stated in the affidavit. In so far as
the prosecution is concerned the occasion to summon any of
its witnesses who has given his evidence on affidavit may arise
                                                                   H
    246       SUPREME COURT REPORTS                   [2010] 1 S.C.R.


A in two ways. The prosecution may summon a person who has
  given his evidence on affidavit and has been cross-examined
  for "re-examination". The prosecution may also have to summon
  a witness whose evidence is given on affidavit in case objection
  is raised by the defence regarding the validity and/or sufficiency
B of proof of some document(s) submitted along with the affidavit.
  In that event the witness may be summoned to appear before
  the court to cure the defect and to have the document(s)
  properly proved by following the correct legal mode. This
  appears to us as the simple answer to the above question and
c th~ correct legal position. Any other meaning given to sub-
  section (2) of section 145, as suggested by Mr. Ranjit Kumar
  would make the provision of section 145(1) nugatory and would
  completely defeat the very scheme of trial as designed under
  sections 143 to 147.
D       23. Mr. Ranjit Kumar next submitted that section 145(2)
    was identical to section 296(2) of the Code of Criminal
    Procedure and this court, in its decision in State of Punjab vs.
    Naib Din, (2001) 8 SCC 578 dealing with section 296(2) of
    the Code made the following observation:
E
          "8 ..... If any party to a tis wishes to examine the deponent
          of the affidavit it is ppen to him to make an application
          before the court that he requires the deponent to be
          examined or cross-examined in court. This is provided in
F         sub-section (2) of section 296 of the Code. When any such
          application is made it is the duty of the court to call such
          person to the court for the purpose of being examined."
        24. Mroe Siddharth Bhatnagar representing the appellant in
  the appeal arising from SLP (Crl.) No.1106/2007 also joined
G Mr. Ranjit Kumar in the submission based on section 296(2)
  of Code. Mr. Bhatnagar submitted that since section 145(2) is
  identical to section 296(2) of the Code, it should be interpreted
  in light of the legislative history of section 296(2) and he tried
  to take us into the details of the legislative history of section
H
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 247
              [AFTAB ALAM, J.]
296 of the Code.                                                 A
     25. In our view the submission is wholly without merit.
Neither section 296(2) of the Code nor the decision in Naib
Din has any relevance or application to the trial concerning a
dishonoured cheque under sections 143 to 146 of the Act. The 8
decision in Naib Din was rendered in a totally different context
and the issue before the court was not, whether on being
summoned on the application made by the accused, the person
giving evidence on affidavit must begin his deposition with
examination-in-chief. The appellants are reading into the C
passage from the decision in Naib Din something that was not
said by the court. Moreover, the crucial difference between
section 296(2) of the Code and section 145(2) of the Act is that
the former deals with the evidence of a formal nature whereas
under the latter provision, all evidences including substantive
evidence may be given on affidavit. Section 296 is part of the D
elaborat~ procedure of a regular trial under the Code while the
whole 6bject of section 145(2) of the Act is to design a much
simpler and swifter trial procedure departing from the elaborate
and time consuming trial procedure of the Code. Hence,
notwithstanding the apparent verbal similarity between section E
145(2) of the Act and section 296(2). of the Code, it would be
completely wrong to interpret the true scope and meaning of
the one in the light of the other. Neither the legislative history
of 296(2) nor any decision on that section can persuade us to
hold that under section 145(2) of the Act, on being summoned · F
at the instance of the accused the complainant or any of his
witnesses should be first made to depose in examination-in-
chief before cross-examination.

     26. Mr. Ranjit Kumar next submitted that in giving evidence G
on affidavit, the deponent (the complainant or any of his
witnesses) can introduce hearsay or irrelevant facts in evidence
to which the accused could have objected if the deposition was
made in court as examination-in-chief. Hence, the accused
must have the right to call the complainant (or his witness giving H
    248     SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A evidence on affidavit) into the witness box for examination-in-
  chief so as to get the inadmissible parts in the affidavit excluded
  from his evidence. Once again the submission is devoid of
  merit. It is noted above that the evidence given on affidavit by
  the complainant is "subject to all just exceptions". This simply
B means that the evidence given on affidavit must be admissible
  and it must not include inadmissible materials such as facts not
  relevant to the issue or any hearsay statements. In case the
  complainant's affidavits contain statements that are not
  admissible in evidence it is always open to the accused to point
c those out to the court and the court would then surely deal with
  the objections in accordance with law.

       27. Mr. Ranjit Kumar lastly submitted that when the
  complainant gives his evidence on affidavit, then the documents
  produced along with the affidavit(s) are not proved automatically
D and unless the accused admits those documents under section
  294 of the Code of Criminal Procedure the documents must
  be proved by oral testimony. We find no substance in this
  submission either and we see no reason why the affidavits
  should not also contain the formal proof of the enclosed
E documents. In case, however, the accused raises any
  objections with regard to the validity or sufficiency of proof of
  the documents submitted along with the affidavit and if the
  objections are sustained by the court it is always open to the
  prosecution to have the concerned witness summoned and get
F the lacuna in the proof of the documents corrected.

       28. Mr. Ranjit Kumar also made a feeble attempt to
  contend that the provisions of sections 143 to 147 inserted in
  the Act with effect from February 6, 2003 would operate
  prospectively and would not apply to cases that were pending
G on that date. The High Court has considered the issue in great
  detail and has rightly taken the view that the provisions of
  sections 143 to 147 do not take away any substantive rights
  of the accused. Those provisions are not substantive but
  procedural in nature and would, therefore, undoubtedly, apply
H
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 249
              [AFTAB ALAM, J.]
to the cases that were pending on the date the provisions           A
came into force. We are fully in agreement and in order to
buttress the view taken by the High Court we will only refer to a
decision of this court.

     29. In Gurbachan Singh vs. Satpal Singh and Ors., 1990         8
(1) sec 445, the court was called upon to consider whether
section 113A of the Evidence Act that created a presumption
as to abetment of a suicide by a married woman would
operate retrospectively or prospectively. The court held:

    "37. The provisions of the said section do not create any       C
    new offence and as such it does not create any substantial
    right but it is merely a matter of procedure of evidence
    and as such it is retrospective and will be applicable to
    this case. It is profitable to refer in this connection to
    Halsbury's Laws of England, Fourth Edition, Volume 44           D
    page 570 wherein it has been stated that:

           "The general rule is that all statutes, other than
           those which are merely declaratory or which relate
           only to matters of procedure or of evidence, are         E
           prima facie prospective, and retrospective effect is
           not to be given to them unless, by express words
           or necessary implications, it appears that this was
           the intention of the legislature ... "

    38. It has also been stated in the said volume of Halsbury's    F
    Laws of England at page 574 that:

    "The presumption against retrospection does not apply to
    legislation concerned merely with matters of procedure or
    of evidence; on the contrary, provisions of that nature are G
    to be construed as retrospective unless there is a clear
    indication that such was not the intention of Parliament.""

                                             (emphasis added)

                                                                    H
    250      SUPREME COURT REPORTS                   [2010] 1 S.C.R.


A      30. Coming now to the last question with regard to the right
  of the accused to give his evidence, like the complainant, on
  affidavit, the High Court has held that subject to the provisions
  of sections 315 and 316 of the Code of Criminal Procedure
  the accused can also give his evidence on affidavit. The High
B Court was fully conscious that section 145(1) does not provide
  for the accused to give his evidence, like the complainant, on
  affidavit. But the High Court argued that there was no express
  bar in law against the accused giving his evidence on affidavit
  and more importantly providing a similar right to the accused
c would be in furtherance of the legislative intent to make the trial
  process swifter. In paragraph 29 of the judgment, the High Court
  observed as follows:

          "It is true that section 145(1) confers a right on the
          complainant to give evidence on affidavit. It does not speak
D         of similar right being conferred on the accused. The
          Legislature in their wisdom may not have thought it proper
          to incorporate a word 'accused' with the word
          'complainant' in sub-section (1) of section 145 in view of
          the immunity conferred on the accused from being
E         compelled to be a witness against himself under Article
          20(3) of the Constitution of India .... "

    Then in paragraph 31 of the judgment it observed:

          ".... Merely because, section 145(1) does not expressly
F         permit the accused to do so, does not mean that the
          Magistrate cannot allow the accused to give his evidence
          on affidavit by applying the same analogy unless there is
          just and reasonable ground to refuse such permission.
          There is no express bar on the accused to give evidence
G         on affidavit either in the Act or in the Code ..... I find no
          justified reason to refuse permission to the accused to
          give his evidence on affidavit subject to the provisions
           contained in sections 315 and 316 of the Code."

H         31. On this issue, we are afraid that the High Court
 MANDVI CO-OP BANK, LTD. v. NIMESH B. THAKORE 251
               [AFTAB ALAM, J.]
 overreached itself and took a course that amounts to taking-          A
 over the legislative functions.

       32. On a bare reading of section 143 it is clear that the
  legislature provided for the complainant to give his evidence
· on affidavit and did not provide for the accused to similarly B
  do so. But the High Court thought that not mentioning the
  accused along with the complainant in sub-section (1) of
  section 145 was merely an omission by the legislature that it
  could fill up without difficulty. Even though the legislature in their
  wisdom did not deem it proper to incorporate the word C
  'accused' with the word 'complainant' in section 145(1), it did
  not mean that the Magistrate could not allow the accused to give
  his evidence on affidavit by applying the same analogy unless
  there was a just and reasonable ground to refuse such
  permission. There are two errors apparent in the reasoning of
  the High Court. First, if the legislature in their wisdom did not D
  think "it proper to incorporate a word 'accused' with the word
  'complainant' in section 145(1)...... ", it was not open to the High
  Court to fill up the self perceived blank. Secondly, the High
  Court was in error in drawing an analogy between the
  evidences of the complainant and the accused in a case of E
  dishonoured cheque. The case of the complainant in a
  complaint under section 138 of the Act would be based largely
  on documentary evidence. The accused, on the other hand, in
  a large number of cases, may not lead any evidence at all and
 let the prosecution stand or fall on its own evidence. In case F
 the defence does lead any evidence, the nature of its evidence
 may riot be necessarily documentary; in all likelihood the
 defence would lead other kinds of evidences to rebut the
 presumption that the issuance of the cheque was not in the
 discharge of any debt or liability. This is the basic difference G
 between the nature of the complainant's evidence and the
 evidence of the accused in a case of dishonoured cheque. It
 is, therefore, wrong to equate the defence evidence with the
 complainant's evidence and to extend the same option to the
 accused as well.                                                        H
    252       SUPREME COURT REPORTS                   [2010] 1 S.C.R.

A      33. Coming back to the fist error in the High Court's
  reasoning, in the guise of interpretation it is not permissible for
  the court to make additions in the law and to read into it
  something that is just ,not there. In Union of India and Anr. vs.
  Deoki Nandan Aggarwal, 1992 Supp. (1) SCC 323, this court
B sounded the note of caution against the court usurping the role
  of legislator in the guise of interpretation. The court observed:

          "14 .... it is not the duty of the court either to enlarge the
          scope of the legislation or the intention of the legislature
          when the language of the provision is plain and
c         unambiguous. The court cannot rewrite, recast or reframe
          the legislation for the very good reason that it has no power
          to legislate. The power to legislate has not been conferred
          on the courts. The court cannot add words to a statute or
          read words into it which are not there. Assuming there is
D         a defect or an omission in the words used by the legislature
          the court could not go to its aid to correct or make up the
          deficiency. Courts shall decide what the law is and not what
          it should be. The court of course adopts a construction
          which will carry out the obvious intention of the legislature
E         but could not legislate itself. But to invoke judicial activism
          to set at naught the legislative judgment is subversive of
          the constitutional harmony and comity of
          instrumentalities .... "

F      34. In Raghunath Rai Bareja and Anr. vs. Punjab National
  Bank and Ors., (2007) 2 SCC 230 while observing that it is
  the task of the elected representatives of the people to legislate
  and not that of the Judge even if it results in hardship or
  inconvenience, Supreme Court quoted in affirmation, the
G observation of Justice Frankfurter of the US Supreme Court
  which is as follows:

          "41. As stated by Justice Frankfurter of the US Supreme
          Court (see "Of Law and Men: Papers and addresses of
          Felix Frankfurter)
H
MANDVI CO-OP BANK LTD. v. NIMESH B. THAKORE 253
              [AFTAB ALAM, J.]
            "Even within their area of choice the courts are not         A
            at large. They are confined by the nature and scope
            of the judicial function in its particular exercise in the
            field of interpretation. They are under the constraints
            imposed by the judicial function in our democratic
            society. As a matter of verbal recognition certainly,        B
            no one will gainsay that the function in construing a
            statute is to ascertain the meaning of words used
            by the legislator. To go beyond it is to usurp a power
            which our democracy has lodged in its elected
            legislature. The great judges have constantly                c
            admonished there bretheren of the need for
            discipline in observing the limitations. A judge must
            not rewrite a statute, neither to enlarge nor to
            contract it. Whatever temptations the statesmanship
            of policy-making might wisely suggest, construction          0
            must eschew interpolation and evisceration. He
            must not read in by way of creation. He must not
            read out except to avoid patent nonsense or internal
            contradiction."

    35. In Duport Steels Ltd. vs. Sirs, [1980] 1 All ER 529, 534,        E
Lord Scarman expounded the legal position in the following
words:

    "But in the field of statute law the judge must be obedient
    to the will of Parliament as expressed in its enactments.            F
    In this field Parliament makes and unmakes the law. The
    judge's duty is to interpret and to apply the law not to
    change it to meet the judge's idea of what justice requires.
    Interpretation does, of course, imply in the interpreter a
    power of choice where differing construction are possible.           G
    But our law require the judge to choose the construction
    which in his judgment best meets the legislative purpose
    of the enactment. If the result be unjust but inevitable, the
    judge may say so and invite Parliament to reconsider its
    provision. But he must not deny the statute."
                                                                         H
    254        SUPREME COURT REPORTS                  [2010] 1 S.C.R.


A       36. In light of the above we have no hesitation in holding
  that the High Court was in error in taking the view, that on a
  request made by the accused the magistrate may allow him to
  tender his evidence on affidavit and consequently, we set aside
  the direction as contained in sub-paragraph (r) of paragraph
B 45 of the High Court judgment. The appeal arising from SLP
  (Crl.) No. 3915/2006 is allowed.

           37. All the remaining six appeals are dismissed.

           38. There shall be no order as to costs.
c
    D.G.                                      Appeals disposed of.