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2010 DIGILAW 781 (MP)

Amita Gas Service v. Raman Gupta

2010-08-05

INDRANI DATTA

body2010
ORDER 1. This order shall govern the disposal of the M. Cr. C. No. 427/1 0 and 433/10. 2. Invoking the extraordinary powers of this Court under section 482 CrPC petitioners have preferred this petition for setting aside the orders dated 7.9.2007 and 8.1.2008 passed by the Special Judge, Gwalior in Criminal Case No.10751/07 and 167/08 whereby on complaint filed by respondents cognizance has been taken against present petitioners under section 138 of Negotiable Instrument Act. . 3. As per the averments of the petition, the petitioner No.1 M/s. Anita Gas Service is proprietorship firm and the petitioner No.2 is also Proprietor of the aforesaid firm. The petitioner No.2 engaged one Raman Gupta (respondent in M. Cr. C. No. 427/10) to work at Gas Service of petitioner No.1 on 30.10.1998. Raman Gupta was authorised to deal with bank transaction on behalf of the petitioner No.2 vide annexure-P/4. Raman Gupta worked against the interest of the petitioners as he committed various financial irregularities, so he was removed from service on 30.4.2007. While working with the petitioners Raman Gupta obtained one cheque-book on 2.12.1998 containing 25 cheques that cheque-book was with him and Rajesh Modi (respondent in M. Cr. C. No. 433/10) is close friend of Raman Gupta and when Raman Gupta was removed from service then respondents Raman Gupta and Rajesh Modi handing in gloves with each other prepared a false story of advancing loan of Rs. 3 lac to the petitioners in cash. On 1.7.07 cheque No. 949189 dated 6.7.07 worth Rs. 3 lac is said to have been issued by the petitioner No.2 and another blank cheque No. 445351 is prepared by respondent Raman Gupta in his favour. When petitioner No.2 came to know about the fact that cheque-book issued on 2.12.1998 containing 25 cheques is missing from the office then the petitioner No.2 vide annexure-P/6 lodged a complaint in United Corporated Bank Lashkar that cheque-book issued on 2.12.1998 is missing and prayed that cheques related to that cheque-book are not to be accepted for payment and also lodged a report at Police Station Janakganj vide annexure-P/7. Raman Gupta and Rajesh Modi then filed criminal case in the Court of CJM Gwalior under section 138 and 142 of Negotiable Instrument Act, 1981 as the cheques presented in Bank for encashment are returned by Bank with an endorsement of stop payment". Raman Gupta and Rajesh Modi then filed criminal case in the Court of CJM Gwalior under section 138 and 142 of Negotiable Instrument Act, 1981 as the cheques presented in Bank for encashment are returned by Bank with an endorsement of stop payment". The aforesaid cases were transferred to Special Judicial Magistrate, who took cognizance vide impugned orders and issued summons to the petitioners, giving rise to this petition. 4. It is contended by the learned counsel for the petitioners that orders of learned trial Court of taking cognizance is improper, illegal and learned trial Court has erred in taking cognizance against the petitioners as statement of complainant and his witnesses have not been recorded under section 200 and 202 CrPC and only on the basis of affidavit sworn by complainant cognizance has been taken while it is mandatory to record statement of complainant as well as witnesses before taking cognizance. Hence the impugned orders are to be quashed. Learned counsel for the petitioners drew this Court's attention to a citation National Small Industries Corporation Limited v. State (NCT of Delhi) and others (2009) 1 SCC 407 wherein it is held that examination of complainant under section 200 CrPC is mandatory. Apex Court quoted the following observations made in Associate Cement Co. Ltd. v. Keshavanand (1998) 1 SCC 687 with approval. "22. Chapter XV of the new Code contains provisions for lodging complaint with Magistrate. Section 200 as the starting provision of that Chapter enjoins of the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words 'shall examine on path the complainant...........'. The Magistrate is further required to reduce the substance of such examination to writing and it 'shall be signed by the complainant'. Under section 203 the Magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complaisant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a Court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the Magistrate." 5. Except under the above understandable situations the complainant has to make his physical presence for being examined by the Magistrate." 5. Further reliance is placed on Banshilal v. Abdul Munnar 2010 (II) MPWN 72 = 2010 (I) MPHT 40 in which Bench of this Court considering the non-compliance with the statutorily mandatory procedure of examining the complaint has set aside the order dated 22.8.08 directing issuance of process against petitioners/accused and directed that it would not be possible to quash the complaint in its entirety referring Namzada Prasad Sonkar v. Sardar Avtar Singh Chabara (2006) 9 SCC 601 . It is held that Magistrate shall be at liberty to make an inquiry under section 200 and 202 CrPC to ascertain as to whether there exits sufficient ground for quashing proceedings against petitioner under section 138 of the Act. 6. Learned counsel for the petitioners placing reliance on the above citations submitted that orders of the learned trial Court of taking cognizance are to be quashed or in alternative trial Court may be directed to make inquiry under section 200 and 202 CrPC. 7. Per contra learned counsel for the respondents opposed the petition and submitted that the orders of trial Court are legal proper and impeccable, as per the provisions of section 145 of Negotiable Instruments Act, 1881 affidavit can be considered as statement on oath hence examination of complainant and his witnesses is not necessary under section 200 and 202 of CrPC. Learned counsel for the respondents has placed reliance on a recent decision of Supreme Court in Mandvi Co-operative Bank Limited v. Nimesh B. Thakore 2010 (2) MPHT 397 (SC) wherein it is held that the evidence given on affidavit is in the nature of examination-in-chief. So accused can only cross examine the person concerned as to facts stated in the affidavit. The claim of the accused that in such a case the person should be made to depose in examination-in-chief all over again cannot be accepted. It is held by the apex Court 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. The claim of the accused that in such a case the person should be made to depose in examination-in-chief all over again cannot be accepted. It is held by the apex Court 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 out those to the Court and the Court would then surely deal with the objections in accordance with law. 8. Placing reliance on the above citation, learned counsel for the respondents submits that evidence given on affidavit is to be taken as examination-in-chief of complainant hence order of trial Court taking cognizance is legal and proper. It is further submitted that evidence of complainant is already completed and case is fixed for examination of accused and case is at the verge of conclusion and no ground for quashing criminal case is made out. 9. Heard the rival contentions of the parties and perused the documents available on record. 10. So far as the dictum relied upon by the learned counsel for the petitioners in National Small Industries (supra) is concerned, it is not applicable in the case at hand as in that case complainant has not filed any affidavit and the appellant was a government company who lodged complaint against second respondent/Company alleging that they had issued a cheque drawn in favour of the appellant towards discharge of its liability, which was dishonored when presented for payment. The Metropolitan Magistrate took cognizance and summoned the accused but did not examine the complaint and its witnesses, under section 200 CrPC as he held that as the complaint was filed by a public servant in discharge of his public duties, his examination was dispensed with. The respondents challenged the summoning order on the basis that as the complainant was a government company and not a public servant, the exemption under clause (a) of the proviso to section 200 CrPC was not available and that the Magistrate could not have dispensed with the mandatory requirement of examining the complainant on oath, under section 200 CrPC. The High Court accepted this contention and allowed the petition and quashed the summoning order. The High Court accepted this contention and allowed the petition and quashed the summoning order. Appellant has thus filed appeal in apex Court and appeal is allowed by apex Court and it was held that "Thus, the answer to the question raised is where an incorporeal body is the payee and the employee who represents such incorporeal body in the complaint is a public servant, he being the de facto complainant, clause (a) of the proviso to section 200 of the Code will be attracted and consequently, the Magistrate need not examine the complainant and the witnesses." So the facts of the case are completely distinguishable from the facts of the case in hand and petitioners do not deserve any benefit on the basis of above citation. 11. So far as second citaion in Bansilal (supra) is concerned, this citation is not applicable in the light of law laid down by the apex Court in Mandvi Cooperative Bank Limited (supra) that the statement on affidavit is admissible and is to be considered as examination-in-chief. 12. Focalizing the above legal aspect of the matter so also the material available on record, I do not find any ground for setting aside the impugned orders passed by the learned trial Court invoking the extraordinary jurisdiction of this Court under section 482 of CrPC. In the result, the petitions fail and are hereby dismissed.