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Madhya Pradesh High Court · body

2009 DIGILAW 263 (MP)

ABHILASHA AGNIHOTRI v. DILIP

2009-02-25

N.K.MODY

body2009
Judgment ( 1. ) PRAYER in this petition is for quashment of criminal case no. 37/3008 pending in the Court of JMFC, Kannod, District-Dewas whereby cognizance was taken by the learned Court below against the petitioner under section 138 of Negotiable Instruments Act, 1881 (which shall be referred hereinafter as "ni Act" ). ( 2. ) SHORT facts of the case are that respondent filed a complaint against the petitioner under Section 138 of NI Act in the month of January, 2008 alleging that a cheque of Rs. 45,00,000/- was issued by the petitioner in favour of respondent. Upon presentation the said cheque was dishonoured and the amount was not paid by the petitioner inspite of notice of demand. It was alleged that petitioner has committed the offence which is punishable under Section 138 of NI Act. After filing of the complaint cognizance was taken by the learned Court below against which the present petition has been filed. ( 3. ) LEARNED counsel for the petitioner argued at length and submits that the impugned order passed by learned Court below is illegal and deserves to be set-aside. It is submitted that since no statement of respondent was recorded under Section 200 and 202 of Cr. P. C, therefore, the complaint filed by the respondent deserves to be dismissed. It is submitted that it is no where stated in the complaint that the amount of Rs. 45,00,000/- was against which liability. Learned counsel for the petitioner placed reliance on a decision of Bombay High Court in the matter of roy Joseph Creado Vs. SK Tamisuddin 2008 (2) DCR 164 wherein Bombay high Court has observed that "verification of the complaint U/s 200 of the Cr. P. C. is necessary. The purpose of such verification is to determine prima facie truth into the allegations made in the complaint. The verification of complaint is essential U/s 200 of the Cr. P. C. before taking cognizance of the offence not only with a view to find out prima facie truth but also in order to identify the person who, in case the prosecution is found to be frivolous or mala fide, would be liable to answer the charge of perjury or to indemnify the accused persons. P. C. before taking cognizance of the offence not only with a view to find out prima facie truth but also in order to identify the person who, in case the prosecution is found to be frivolous or mala fide, would be liable to answer the charge of perjury or to indemnify the accused persons. " On the strength of aforesaid decision learned counsel for the petitioner submits that the petition filed by the petitioner be allowed and the proceedings initiated against the petitioner be quashed. ( 4. ) LEARNED counsel for the respondent submits that since cognizance has been taken by the learned Court below, therefore, the petition is not maintainable at this stage. So far as statement of respondent under Section 200 of Cr. P. C. is concerned, learned counsel submits that in view of Section 145 of NI Act it is not necessary to record the statement of complainant under Section 200 of Cr. P. C. It is submitted that for the purpose of constituting the offence under Section 138 of NI Act sufficient facts are on record. It is submitted that even if, it is assumed that the statement of respondent has not been recorded under Section 200 and 202 of cr. P. C, then too, no prejudice has been caused to the petitioner. For this contention reliance is placed on a decision of Karnataka High Court in the matter of Mallapa sangapa Desai Vs. Laxmanappa Basappa Whoti 1995 CRI. L. J. 715 wherein karnataka High Court in the matter where complaint under Section 138 of NI act was filed, held that "though this procedure adopted by the Magistrate is in violation of the provisions of Section 200 Cr. P. C. and is therefore an irregularity, the question that would arise for consideration is whether on account of the improper examination of the complainant the order issuing process could be set aside at the instance of the accused petitioner. It was further observed that as no prejudice is caused to the accused on account of the above irregularity the defect gets cured under Section 465 Cr. P. C. and that the order cannot be set aside on that score. " On the strength of aforesaid decision learned counsel for the respondent submits that the order passed by learned court below is just and proper and the petition filed by the petitioner be dismissed. ( 5. P. C. and that the order cannot be set aside on that score. " On the strength of aforesaid decision learned counsel for the respondent submits that the order passed by learned court below is just and proper and the petition filed by the petitioner be dismissed. ( 5. ) SECTION 145 of NI Act which has come in force by the Act No. 455/2002 with effect from 06/02/2003 reads as under :- 145. Evidence On affidavit.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the. evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. ( 6. ) FROM perusal of aforesaid Section, it is evident that the evidence of the complainant can be recorded on affidavit and as per sub-section (2) of section 145 of NI Act the Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. ( 7. ) IN the present case affidavit has been filed by the respondent. So far as law laid down by Bombay High Court in the matter of Roy Joseph Creado (Supra) is concerned, the case is not applicable in the present case because in that case the cheque was dated 20/06/2001 and the complaint was also filed under Section 138 of NI Act in the year 2001 while Section 145 has been inserted in the NI Act in chapter 17 on 06/02/2003. So far as another submission made by learned counsel for the petitioner that it is no where stated by the respondent that cheque amount of Rs. 45,00,000/- was against which liability is concerned, Section 138 NI Act lays down that any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability. 45,00,000/- was against which liability is concerned, Section 138 NI Act lays down that any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability. Since the cheque was issued by the petitioner and the same was unpaid inspite of demand of notice, this Court is of the opinion that no illegality has been committed by learned Court below in taking the cognizance against the petitioner. ( 8. ) IN the opinion of this Court at this stage, the complaint cannot be dismissed or charges cannot be quashed only on the account that respondent has failed to mention in the complaint that the cheque was against which liability. However, it is made clear that in evidence petitioner is at liberty to demonstrate that the cheque was against no liability by cross-examining the complainant and other witnesses who shall be examined by the respondent and also by leading the defence evidence. In view of this, petition filed by the petitioner stands dismissed. C. C. as per rules. Petition dismissed.