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2006 DIGILAW 1203 (DEL)

RANBIR SINGH KHARAB v. SANTOSH

2006-07-21

A.K.SIKRI

body2006
A. K. SIKRI, J. ( 1 ) THE respondent herein filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') in the court of the learned Metropolitan Magistrate. It is alleged therein that the respondent had given loan of Rs. 18,60,000/- to the petitioner on interest @ 24% p. a. For repayment of this amount, the petitioner herein issued a cheque bearing No. 004050 da'ted 25. 12. 2003 for Rs. 18,60,000/- drawn on corporation Bank, Palam, New Delhi. When the cheque was presented, it was returned unpaid for the reason 'stop Payment' vide returning memo dated 16. 4. 2004. The respondent served legal notice and thereafter filed the aforesaid complaint. Summons have been issued to the petitioner in the said complaint. Challenging the summoning order, the present petition is filed. ( 2 ) IT is, inter alia, pleaded that there was no such loan transaction between the parties; the petitioner, on account of his being hard pressed for time, normally gives his cheque book to his wife at times with several signed cheque leaves; the fact was known to one Ranbir, S/o. Jundan Lal, who happens to be elder brother of his wife and it is possible that he has committed mischief by stealing the Wank cheque and filling the particulars therein. It is further stated that the petitioner had reported the matter to the Police and gave instructions to the bank to stop the payment, after he came to know that the cheque book containing cheque Nos. 111031-111040 was lost, which contained the cheque in question as well. The aforesaid defence raised is a matter for trial as these disputed questions of fact cannot be decided in these proceedings under Section 482 Cr. P. C. In fact, this is the defence of the petitioner which has to be decided by the trail court after recording evidence of both the parties. ( 3 ) THE other submission made is that before issuing the summons, the learned metropolitan Magistrate did not comply with the provisions of Section 200 Cr. P. C. inasmuch as no pre-summoning evidence was recorded. It is further submitted that though the respondent had filed the affidavit, mere filing of the same was not sufficient compliance of the provisions of section 200 Cr. P. C. inasmuch as no pre-summoning evidence was recorded. It is further submitted that though the respondent had filed the affidavit, mere filing of the same was not sufficient compliance of the provisions of section 200 Cr. P. C. as it was necessary for her to tender the said evidence in the court. The summoning order reads as under :- "present: Complaint (sic) with counsel. An evidence by way of affidavit filed today. Pre-summoning evidence closed. Fresh complaint received today an assignment. It be checked and registered. Argument on the point of summoning heard and record perused. The cheque Ex CW 1/a is deposed to have been issued by the accused in discharge of his liabilities towards the complainant, and the cheque on presentation was dishonoured due to reason of "funds insufficient on 16. 04. 04 vide return memo Ex CW 1/d legal notice EX CW1/c dated 13. 05. 04 was sent to the accused within the period of limitation through registered AD postal receipts. Exhibit cw1/d. It is deposed that even after receipt of notice the cheque amount have not been paid by the accused to the complainant. The present case has been filed within the prescribed period of limitation on 10. 06. 04. I am also satisfied regarding jurisdiction of this court. There is sufficient material to summon the accused u/s. 138 Negotiable instrument Act. Accordingly issue summons to accused u/s 138 of Negotiable Instrument Act upon filing of PF/rc/ad and as well as through approved courier: Copies of complaint and documents, list of witnesses for 30. 07. 04. " ( 4 ) IT is clear from the aforesaid order that the respondent/complainant was present in the Court and evidence by way of affidavit was filed. On taking the evidence by way of affidavit in the presence of the complainant, the learned MM closed the pre-summoning evidence and thereafter arguments on the point of summoning were heard, record perused and order of summoning of the petitioner was passed. Therefore, it cannot be said that pre-summoning evidence was not recorded. ( 5 ) ANOTHER argument of learned counsel for the petitioner is that the complainant did not tender her affidavit. However, the aforesaid order does not make it clear as to whether her statement was recorded whereby she tendered the affidavit. Therefore, it cannot be said that pre-summoning evidence was not recorded. ( 5 ) ANOTHER argument of learned counsel for the petitioner is that the complainant did not tender her affidavit. However, the aforesaid order does not make it clear as to whether her statement was recorded whereby she tendered the affidavit. In any case, the Kerala High Court in Vasudevan vs. State of Kerala, 2005 (5) CRJ 740, has considered Section 145 of the Act (as amended) and observed as under :- "11. I find no merit in this assumption also. As early as in Vadilal Panchal vs. Dattatraya, AIR 1960 S. C. 1113 it is indicated that procedure prior to an order of dismissal under Section 203 (or cognizance under Section 204)is enquiry. Going by the first principles also, at the stage of Section 200 Cr. P. C. , the Court is only considering on the basis of the materials available before it, whether there are sufficient grounds to proceed against the accused. Materials are available before the Court. The complaint is available. Sworn statement of the complainant and witnesses are available. Mind of the court is applied to these materials judicially to decide whether the matter deserves to be proceeded with further by issue of process under Section 204 Cr. P. C. or whether proceedings deserve to be terminated by dismissal of the complaint under Section 203 cr. P. C. In any view of the matter, the proceedings before the Criminal court at that stage would certainly qualify to be "inquiry" as defined under section 2 (g ). Under Section 2 (g), inquiry means every inquiry, other than trial, conducted under this Code by a magistrate or Court. In this view of the matter, the proceedings before the Magistrate under Section 200 cr. P. C. whereunder the Magistrate considers the materials available before him to decide whether a judicial order of dismissal under Section 203 Cr. P. C. or a judicial order of issue of process under Section 204 Cr. P. C. should be passed, would certainly be inquiry under Section 2 (g ). The objection raised that Section 145 of the negotiable Instruments Act cannot apply for the reason that the proceedings is not inquiry, cannot hence be accepted. 12. The only other question is whether the sworn statement of the complainant can be reckoned as evidence. P. C. should be passed, would certainly be inquiry under Section 2 (g ). The objection raised that Section 145 of the negotiable Instruments Act cannot apply for the reason that the proceedings is not inquiry, cannot hence be accepted. 12. The only other question is whether the sworn statement of the complainant can be reckoned as evidence. The learned Magistrate appears to be under the impression that the sworn statement of the complainant cannot be reckoned as evidence for the purpose of Section 145 and consequently the affidavit contemplated cannot be accepted as evidence. 13. On this aspect also we have the observations in Harihara Iyer's case which clearly show that at the stage of Section 200 Cr. P. C. , the Criminal court is conducting an enquiry and is considering the evidence available before it. I extract the relevant passage below: "we, therefore, hold that the enquiry envisaged under Section 200 is for ascertaining the truth or falsehood of the complaint and also for ascertaining whether there is any evidence in support of the complaint so as to justify the issue of process", (emphasis supplied) 14. Even otherwise, from principle also, I find no merit in the contention that the sworn statement of the complainant and witnesses under section 200 Cr. P. C. will not qualify to be evidence, Section 3 of the evidence Act defines evidence in the following words: "evidence" - Evidence means and includes (I) all statements which the court permit or requires to be made before it by witnesses, in relation to matters of fact under inquiry such statements are called oral evidence; (emphasis supplied) 15. All statements which the Court permits or requires to be made before it by witnesses in relation to facts under inquiry would be evidence. The provisions regarding the manner in which examination of witnesses is to take place and the order of examination in chapter X of the evidence Act cannot be pressed into service to decide whether the sworn statement recorded under Section 200 Cr. P. C. , will be evidence or not. Any statement which the Court permits or requires to be made before it by witnesses, whether such statement be tested by a cross-examination or not, will certainly be evidence for the purpose of Section 3. P. C. , will be evidence or not. Any statement which the Court permits or requires to be made before it by witnesses, whether such statement be tested by a cross-examination or not, will certainly be evidence for the purpose of Section 3. In these circumstances, the contention that sworn statement would become evidence, only if and after opportunity for cross-examinations is granted, cannot also be accepted. On this aspect also, there can be no dispute and the question is clearly covered in Rakesh vs. State of Haryana, 2001 V AD (S. C.) 553 = AIR 2001 SC 2521 . Considering the ambit of the expression. Evidence appearing in section 319 (1) Cr. P. C. , the Supreme court had held that the sworn statement in chief examination, even when not tested by a cross-examination, would continue to the evidence for the purpose of Section 319. In a still earlier decision in santhosh De and Anr. Vs. Archana guha and Ors. , 1995 AIR SCW 1725 the Supreme Court, while considering section 245 (3) of the Code of Criminal procedure, which was in force in West bengal, had held that the expression "evidence" therein need not be restricted only to statements made on oath before Court which are tested by cross-examination. Still later, in Gopalakrishan Vs. State of kerala, 2001 (2) KLT 767 a learned judge of this Court has held that under Section 244 Cr. P. C. the accused has no absolute right for cross-examination of a witness, notwithstanding the fact that the statutory provision in Section 244 (1)employs expression "evidence. " 16. Thus, it follows from the above discussions that the proceedings before the Criminal Court at a stage prior to Section 203/204 Cr. P. C. will be inquiry. The statement of a complainant to be recorded under section 200 Cr. P. C. will be evidence. In these circumstances, Section 145 of the Negotiable Instruments Act squarely applies and it will be permissible for the Court to receive the affidavit filed under Section 145 of the negotiable Instruments Act at the stage of Section 200 Cr. P. C. and to act upon the same. It is unnecessary ordinarily to insist on personal appearance of the complainant to tender the sworn statement at that stage. " ( 6 ) FOR the foregoing reasons, this petition is dismissed. P. C. and to act upon the same. It is unnecessary ordinarily to insist on personal appearance of the complainant to tender the sworn statement at that stage. " ( 6 ) FOR the foregoing reasons, this petition is dismissed. Needless to mention, the observations made by this Court will not prejudice the case of the petitioner before the trial court.