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2008 DIGILAW 505 (GAU)

Kamakhya Mahanta v. State of Meghalaya

2008-07-18

TINLIANTHANG VAIPHEI

body2008
JUDGMENT T. Vaiphei, J. 1. This criminal petition is filed by two Petitioners under Section 482 of the Code of Criminal Procedure, 1973 for quashing the FIR lodged against them, which is registered as Sadar P.S. Case No. 329 (12)/07 under Sections 420/ 34 I.P.C. Though the facts pleaded are many, the can be decided on a narrow compass. The nature of the controversy involved in this case can best be understood by reproducing, at the very outset, the contents of the FIR in extenso, which are as under: I have the honour to hereby inform your goodself that the Cheque No. 049747 dated 14.08.2007, for an amount of Rs. 4,00,000/- (Rupees four lakhs) only, of the UCO Bank, Shillong, issued by the Company named "S.M. Apartments Pvt. Ltd.", of GS. Road (Opposite IDBI Building), Guwahati-781005, under the signature and seal of its Managing Director, Shri Kamakhya Mahanta and its Director, Shri Sagar Saikia, in my favour, was presented by me for encashment through my bank i.e. the Syndicate Bank, Shillong, to the drawee bank whereupon the cheque was returned along with the Memo dated 03.10.2007 under the signature of the Assistant Manager of the drawee bank, namely, UCO Bank, Shillong Branch, giving the reason that the cheque could not be encashed as the amount of Rs. 4,00,000/- "exceeds arrangement", Copies of the said cheque dated 14.08.2007 and the said Memo dated 03.10.2007 are enclosed herewith. Subsequently I have given Notices Under Section 138 of the Negotiable Instruments Act, 1881, to the said Shri Kamakhya Mahanta and Sliri Sagar Saikia on 09.10.2007, demanding of them to pay the said amount of Rs. 4,00,000/- within 15 days of the receipt of the Notices. The Notices dated 09.10,2007 were sent by Registered Post with A/D and the A/D Cards returned showing that the addressees had received the Notices on 22.10.2007. Now more than 15 days have-lapsed since the receipt of the said Notices on 22.10.2007 by the said persons. Hence I have no option but to file this instant ejahar and to request you to initiate necessary action as per law at your earliest convenience. I shall remain ever grateful for your act of kindness. Thanking you. Yours faithfully, Sd/- K.D. Nongrum Mega Towers, Lummawrie, Laitumkhrah, Shillong-3. 2. From the first information report lodged by the complainant/Respondent, it can hardly be disputed, nor does Mr. I shall remain ever grateful for your act of kindness. Thanking you. Yours faithfully, Sd/- K.D. Nongrum Mega Towers, Lummawrie, Laitumkhrah, Shillong-3. 2. From the first information report lodged by the complainant/Respondent, it can hardly be disputed, nor does Mr. S. Chakraborty, the learned Counsel for the Respondent, dispute it in the course of hearing, that the Respondent himself is quite aware of the fact that the complaint lodged by him is in respect of the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 ("the Act" for short) and not under Sections 420 I.P.C. This is evident from the fact that notices were also issued by him to the Petitioners under Section 138 of the Act. Therefore, the allegations made by him in the aforesaid FIR, even if they are taken at their face value and accepted in their entirety, can at the most be a case of dishonouring the cheque dated 14.8.2007 amounting to Rs. 4,00,000/- issued by the Petitioners due to insufficiency of fund in their account, which may constitute an offence punishable under Section 138 of the Act, and not under Section 420 I.P.C. However, instead of filing a complaint case under the Act just after the expiry of the notice issued by him under proviso (b) to Section 138 of the Act, the Respondent, for reasons best known to him, opted to lodge the FIR before the Officer-in-Charge of Sadar. Police Station. The Sadar Police Station also willingly obliged the Respondent and proceeded to arrest the Petitioner No. 2, though he was subsequently released on bail. The Petitioner No. 1 managed to obtain anticipatory bail from this Court, and was accordingly let off the hook. 3. The question which falls for consideration is whether the police can register the FIR lodged by the Respondent and take up investigation of the case without the order of a Magistrate when the offence complained of is admittedly one punishable under Section 138 of the Act. What is the nature of the offence punishable under Section 138 of the Act? Section 138 of the Act deals with the offence concerning the dishonouring of cheque for insufficiency, etc. of funds in the bank account. Section142 pertains to cognizance of the offence punishable under Section 138, which reads thus: 142. Cognizance of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). Section 138 of the Act deals with the offence concerning the dishonouring of cheque for insufficiency, etc. of funds in the bank account. Section142 pertains to cognizance of the offence punishable under Section 138, which reads thus: 142. Cognizance of offences.-Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974). (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque; (b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138: Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfies the Court that he had sufficient cause for not making a complaint within such period; (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138. 4. A perusal of the provisions extracted above plainly shows that the offence punishable under Section 138 of the Act is a non-cognizable offence, and not a cognizable offence. It is submitted by Mr. K. Paul, the learned Counsel for the Petitioner, that inasmuch as the offence in question is a non-cognizable offence, the police, having not obtained the permission of the Magistrate having the jurisdiction, are clearly barred by Section 155(2) Code of Criminal Procedure from taking up the investigation of the complaint, much less, of arresting the Petitioner No. 1; a clear embargo is thus imposed upon the police not to register the FIR or investigate the case without the order of the Magistrate. It is thus vehemently submitted by the learned Counsel for the Petitioner that both the FIR and the investigation initiated by the police in connection therewith evidently contravene Section155(2) Code of Criminal Procedure, and are illegal and malicious and should be quashed forthwith. It is, however, contended by Mr. It is thus vehemently submitted by the learned Counsel for the Petitioner that both the FIR and the investigation initiated by the police in connection therewith evidently contravene Section155(2) Code of Criminal Procedure, and are illegal and malicious and should be quashed forthwith. It is, however, contended by Mr. S. Chakraborty, the learned Counsel for the Respondent that there is no informity in the registration of the FIR or of the subsequent action taken by the police in view of the fact that the police can always apply for the order of the Magistrate even at this stage, for which a direction in that behalf can also be issued by this Court and whatever defects against which serious exceptions have been taken by the Petitioners are merely curable defects, and cannot really be a legitimate ground for stopping the investigation of the case altogether. He, therefore, strenuously urges that this criminal petition be dismissed after issuing appropriate direction to the police to the Respondent to obtain permission from the Magistrate to enable the police to investigate the case even at this stage. 5. I have given my thoughtful consideration to the submissions advanced by both the Counsel appearing for the rival parties. I have also carefully gone through the FIR in question. Under Section154 Code of Criminal Procedure, if any information disclosing a cognizable offence is laid before an officer-in-charge of a police station satisfying the requirement of Section 154(1), the police officer has no option but to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information. What are the requirements of Section 154(1)? They are: (1) there must be an information and (2) the information in question must disclose a cognizable offence. If the information does not disclose a cognizable offence, then the police officer has no authority to investigate the case, but must refer the informant to the Magistrate. If, however, the information discloses a cognizable offence, the police officer shall then have the power to investigate the case under Section 156 Code of Criminal Procedure. If the information does not disclose a cognizable offence, then the police officer has no authority to investigate the case, but must refer the informant to the Magistrate. If, however, the information discloses a cognizable offence, the police officer shall then have the power to investigate the case under Section 156 Code of Criminal Procedure. Section 155 deals with information as to non-cognizable cases and investigation of such case, which is in the following terms: Section 155(1) When information is given to an officer-in-charge of a police station of the commission within the limits of such police station of the commission of a non-cognizable offence, he shall enter or cause to be entered the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf, and refer the conformant to the Magistrate. (2) No police officer shall investigate a non-cognizable case without the order of a Magistrate having power to try such case or commit the case for trial. (3) Any police officer receiving such order may exercise the same powers in respect of the investigation (except the power to arrest without warrant) as an officer-in-charge of a police station may exercise in a cognizable case. (4) Where a case relates to two or more offences of which at least one is cognizable, the case shall be deemed to be a cognizable case, notwithstanding that the other offence are non-cognizable. 6. What Section 155 Code of Criminal Procedure says, in plain language, is that a police officer receiving information of non-cognizable offence is required to enter the substance of the information in a book kept in such form as the State Government may prescribe and then refer the informant to the Magistrate. The book referred to therein is commonly known as General Diary (GD.). As soon as the FIR is recorded, a corresponding entry has to be made in the daily diary wherein the substance of the FIR should be incorporated and the substance of the FIR. would mean that not only the name of the person on whose statement the FIR is recorded but also the name of the eye-witnesses, the names of the accused, if so named, to be recorded. However, the police officer must not investigate a non-cognizable case without an order of a Magistrate. would mean that not only the name of the person on whose statement the FIR is recorded but also the name of the eye-witnesses, the names of the accused, if so named, to be recorded. However, the police officer must not investigate a non-cognizable case without an order of a Magistrate. The provisions in Section 155(2) insisting the order of the Magistrate to investigate a non-cognizable offence are held to be mandatory [see Prakash Singh Badal v. State of Punjab, (2007) 1 SCC1 (at page 41)]. This statutory safeguard must be strictly complied with, for it is conceived in public interest and is provided as a bulwark against malicious, frivolous, vindictive and vexatious prosecution. Thus, if the offence of Section 138 of the Act were taken to be one of the non-cognizable offences envisaged by Section2(i) Code of Criminal Procedure, the procedures laid down in Section 155 including the requirement to take the order of the Magistrate shall have to be followed before a police officer investigate the offence alleged against the Petitioners. But the more important question is whether the procedures laid down by Section 155 Code of Criminal Procedure for dealing with non-cognizable offences contemplated under Section 2(i) Code of Criminal Procedure are equally applicable to the offence punishable under Section 138 of the Act. In other words, whether the offence of Section 138 of the Act can be investigated by a police officer even with the order of a Magistrate is the moot point. 7. In my judgment, the provisions of Section 155 Code of Criminal Procedure cannot be held applicable to the prosecution of an offence under Section 138 of the Act. As already reproduced earlier, Section 142 of the Act commences with a non-obstante clause, namely, "Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974).... This means that in spite of the provisions of the Code of Criminal Procedure, 1973, Section 142categorically bars any Court from taking cognizance of any offence punishable under Section 138except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. The condition which is sine qua non for prosecution of an offence under Section138 of the Act is the lodging of a complaint in writing by the payee himself or by the holder in due course of the cheque before a Court. The condition which is sine qua non for prosecution of an offence under Section138 of the Act is the lodging of a complaint in writing by the payee himself or by the holder in due course of the cheque before a Court. The Court in the context means the Court which shall not be inferior to that of a Metropolitan Magistrate or Judicial Magistrate of the first class, which, under Section 142(c) read with Section 143, alone are given the power to try the offence punishable under Section 138. The effect of a non-obstante clause in legislation is to enable that legislation to prevail over the provisions in any other legislation, which is contrary to it. In the case of conflict, the legislation having non-obstante clause would prevail. In Maktool Singh v. State of Punjab, (1999) 3 SCC 321 , the Apex Court considered the use of non-obstante clause in construing the enacting part of Section 32A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act). The section reads: 32A. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) or any other law for the time being in force but subject to the provisions of Section 33, no sentence awarded under this Act (other than Section 27) shall be suspended or remitted or commuted. 8. Section 36 provides for appeals and revision to the High Court and says that it "may exercise, so far as maybe applicable, all the powers conferred by Chapters XXIX and XXX of the Code of Criminal Procedure, 1973." The question before the top Court was whether the High Court could exercise its power of suspending the sentence under Section 389 which occurs in Chapter XXIX of Code of Criminal Procedure, pending an appeal. Having regard to the width of the non-obstante clause in Section 36A, which refers to the entire Code of Criminal Procedure and any other law for the time being in force, as also to the qualifying words "so far as maybe applicable" in Section 39B, it was held that the High Court has no such power and cannot suspend the sentence awarded under the NDPS Act pending an appeal before it. In instant case also, the width of the words used, namely, "Notwithstanding anything contained; in the Code of Criminal Procedure, 1973 (2 of 1974) rules out the applicability of Section 155 Code of Criminal Procedure for prosecution of the offence punishable under Section 138. This is reinforced by the Section 143 of the Act which categorically provides that "Notwithstanding anything contained in the Code of Criminal Procedure, 1973, all offences under the 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." What is thus apparent from reading Section 142 and Section 143 together is that the Act is a self-contained code for dealing with the prosecution of the offence punishable under Section 138. Therefore, for an offence punishable under Section 138, the procedures prescribed in Sections 142and 143 are a complete answer, and the procedures for dealing with non-cognizable offences provided for in Section 155 Code of Criminal Procedure cannot thus be held applicable. 9. The Negotiable Instruments Act, 1881 is undoubtedly a special enactment. It is a well settled proposition of law that if a special procedure is prescribed under the special enactment, it is that procedure which shall have to be followed, and not the one prescribed under the Code of Criminal Procedure. This position is amply made clear by Sections 4 and 5 Code of Criminal Procedure, which are as follows: 4. Trial of offences under the Indian Penal Code and other laws.- (1) All. offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to an/enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. 5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 10. 5. Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. 10. There is no doubt that the two provisions extracted above incorporate the maxim Generalia Specialibus Non Derogant i.e. special provision must prevail over general. Where Special Law envisages special procedure for the manner or place of investigation or trial, the provisions thereof must prevail and no provisions of the Code of Criminal Procedure can apply. Therefore, the provisions of Section 142 of the Act rule out the applicability of Section 155 of the Code of Criminal Procedure, 1973 for prosecution of the offence punishable under Section 138 of the Act. If the Respondent seeks to prosecute the Petitioners for the offence punishable under Section 138 of the Act, he cannot approach the police under Section 155 of the Code of Criminal Procedure, 1973, but must take recourse to the procedures laid down in Section 142 of the Act. Similarly, the Officer-in-Charge of Sadar Police Station should not have entertained the FIR lodged by the Respondent concerning the alleged commission of offence punishable under Section 138 of the Act by the Petitioners. The Officer-in-Charge should have applied his mind properly before entertaining the FIR and arresting the Petitioner No. 2, and should not have been swayed by the offence of Sections 420/ 34 IPC mentioned in the FIR when, in fact, the contents of the FIR, already reproduced ad verbatim earlier, unambiguously, accuses the Petitioners of committing the offence punishable under Section 138 of the Act. It is the substance of the complaint, and not the for in, which is important. The Officer-in-Charge of Police Station has evidently misused his power and has, in the process, abused the process of Court. Since no allegation of mala fides has been alleged against the Officer-in-Charge, I refrain from passing strictures against him. 11. For what has been stated in the foregoing, this criminal petition is allowed. Both the F.I.R lodged by the Respondent and the connected proceedings/investigation initiated by the police in Sadar PS. Case No. 329 (12) 07 under Sections 420/ 34 I.P.C are hereby quashed. The Petitioners shall stand discharged from the case. 11. For what has been stated in the foregoing, this criminal petition is allowed. Both the F.I.R lodged by the Respondent and the connected proceedings/investigation initiated by the police in Sadar PS. Case No. 329 (12) 07 under Sections 420/ 34 I.P.C are hereby quashed. The Petitioners shall stand discharged from the case. It shall, however be open to the Respondent to prosecute the Petitioners under Section 138 of the Act afresh, if permissible by law. The Respondent shall pay the cost of this criminal petition to the Petitioners. Petition allowed