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Madhya Pradesh High Court · body

2012 DIGILAW 372 (MP)

Daulatsingh v. Shyamsunder Yadav

2012-04-02

M.C.GARG

body2012
ORDER : M.C. Garg, J. In all these cases, a common question of law has been raised by the petitioners, i.e. whether cognizance of an offence under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as the Act) can be taken only on the basis of an affidavit filed along with the complaint by taking recourse to Section 145(1) of the Act, which was incorporated by the Amendment Act, 2002, despite existence of the provisions under Section 200 Cr.P.C. which requires evidence of the complainant and his witnesses to be recorded before issuing the process. 2. This question has come up before this Court even earlier in the case of M/s Nobel Packaging, Peethampur, district Dhar v. M/s. Plasto Pack, Indore. This Court while deciding a buck of petitions in M.Cr.C.No.3772/2011 having relied upon amending provisions of the Act including Sections 143 and 145 thereof and having taken note of the judgment of the Hon'ble Supreme Court in the case of Mandvi Co-operative Bank Limited v. Nimesh B. Thakore, (2010) 3 SCC 83 and Full Bench judgment of the Bombay High Court held:- “(i) For the purpose of issuing process under Section 200 of the Code of Criminal Procedure, 1973, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the Magistrate is not obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witnesses upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881. It is only if and where the Magistrate, after considering the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness is required, that the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881. (ii) I am also of the view that there is nothing wrong in the complainant under Section 138 of the Negotiable Instruments Act, 1881 filing the affidavit in support of the complaint in a format indicating all the essential facts satisfying the ingredients of Section 138 of the Negotiable Instruments Act, 1881 for the purpose of enabling the Magistrate to decide whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1981.” 3. On behalf of the petitioners it has been submitted that in view of the language of Section 200 Cr.P.C., cognizance cannot be taken of the offence on a complaint under Section 138 of the Act before examining the complainant and his witnesses on oath, even after the amendment carried out in the Act by incorporating Section 145 thereof. They relied upon a judgment of the learned Single Judge of this Court delivered in the case of Banshilal v. Abdul Munnar 2010 (1) MPLJ 644 . 4. On the other hand, learned counsel appearing for the respondents have submitted that in the light of the provisions contained under Section 143, 144 and 145 of the Act, brought in the statute book by way of amendment as also other provisions contained in that Act, and the language of Section 145 of the Act, which starts with the following non-obstante clause i.e. “not withstanding anything contained in the Code of Criminal Procedure, 1973”, it is not necessary to examine the complainant and his witnesses on oath before taking cognizance in the matter, in case if the affidavit and the documents filed with the affidavit discloses commission of an offence under Section 138 of the Act. They have relied upon the following judgments M/s Mandvi Co-op Bank Ltd. v. Nimesh B.Thakore (2010) 3 SCC 83 , Radhey Shyam Garg v. Naresh Kumar Gupta, AIR 2010 SC 3210 , Sri. Tridib Dutta Choudhury v. Sri. Pinak Bhattacharjee Criminal Revision Petition NO. 92/2011 :- ( 2011 ACD 900 ) of Gauhati High Court, Manmohan Singh v. M/s. Ankur Enterprises, SBCWP No.367/2011, Rajesh Agarwal v. State and another, Crl. M.C. 1996/2010, Rajesh Bhalchandra Chalke v. State of Maharashtra and Emco Dynatorq Pvt.Ltd, Criminal Writ Petition No.2523/2010 :- (2010 ACD 64). 5. Tridib Dutta Choudhury v. Sri. Pinak Bhattacharjee Criminal Revision Petition NO. 92/2011 :- ( 2011 ACD 900 ) of Gauhati High Court, Manmohan Singh v. M/s. Ankur Enterprises, SBCWP No.367/2011, Rajesh Agarwal v. State and another, Crl. M.C. 1996/2010, Rajesh Bhalchandra Chalke v. State of Maharashtra and Emco Dynatorq Pvt.Ltd, Criminal Writ Petition No.2523/2010 :- (2010 ACD 64). 5. To appreciate the controversy, it will be appropriate to take note of the provisions contained under section 200, 202 and 203 and the same are reproduced hereunder :- 200. Examination of complainant. A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) If a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint;or (b) If the Magistrate makes over the case for inquiry, or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 202. Postponement of issue of process. (1) Any Magistrate, on receipt of a complaint of an offence which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by, a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding : Provided that no such direction for investigation shall be made, - (a) Where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Sessions or (b) Where the complaint has not been made by a court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witness on oath : Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an offer in charge of a police station except the power to arrest without warrant. 203. Dismissal of complaint. If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. 6. A perusal of the aforesaid provisions shows that as per the Code of Criminal Procedure, when a complaint is filed for the purpose of enabling the Magistrate to take cognizance under Section 200 Cr.P.C., the Magistrate is obliged to examine the complainant and his witnesses, if any, before issuing the process. The Magistrate is required to reduce the substance of such examination to writing. There is no other provision for taking cognizance of an offence except Sections 200 and 202 of Cr.P.C. Section 200 uses the words “shall examine” and not “may examine”. Hence, the procedure recording examination of the complainant on oath is mandatory and not optional. 7. As per counsel appearing for the petitioner, the aforesaid process is mandatory process and violation thereof makes issuance of process illegal and such process issued without examining the complainant, cannot be sustained in law and requires to be quashed and consequently, the complaint filed on behalf of the complainant should not be allowed to proceed unless the procedure is followed. 8. On the other hand it is submitted by the respondent that the very object for which the Legislature added Sections 143 - 147 in the Negotiable Instruments Act and particularly Sections 143, 145 and 147 would be defeated if the Petitioner's contentions were to be accepted. 8. On the other hand it is submitted by the respondent that the very object for which the Legislature added Sections 143 - 147 in the Negotiable Instruments Act and particularly Sections 143, 145 and 147 would be defeated if the Petitioner's contentions were to be accepted. Relying on the Statement of Objects and Reasons for the Amending Act 55 of 2002, it was submitted that the Legislature noticed the alarming state of affairs about huge pendency of complaints under Section 138 of NI Act and, therefore, the Legislature was keen to ensure that the complaints under Section 138 of the NI Act were taken up and tried and decided at the earliest. That is why the Legislature prescribed procedure for dispensing with the stage of preliminary evidence in the form of examination of complainant under Section 200 Code of Criminal Procedure and achieved this object by providing at the commencement of Section 145(1) of NI Act, “Notwithstanding anything contained in the Code of Criminal Procedure, 1973”, which would include Section 200 of the Criminal Procedure Code. The evidence of the complainant may be given by him on affidavit and may be read in evidence in any enquiry, trial or other proceeding under the Cr.P.C. 9. It has further been submitted that in order to expedite the decision on the complaint under Section 138 of NI Act, Section 143 of the Act provides that notwithstanding anything contained in the Code of Criminal Procedure. the complaints under Section 138 of NI Act shall be tried by a Metropolitan Magistrate or by a Judicial Magistrate of the First Class as summary trial under Sections 262 - 265 of Cr.P.C. The very fact that the Legislature specifically provided in Sub-section (3) of Section 143 that every trial shall be conducted as expeditiously as possible and an endeavour shall be made to complete the trial within six months from the date of filing of the complaint clearly indicates the legislative intent that issuance of process was also intended to be expedited after filing of the complaint. 10. 10. It has been submitted that Sections 138 - 147 in Chapter XVII of the NI Act are a Code by itself and the very fact that the Legislature specifically provided for the non-obstante clause in Sections 143, 144 and 145 of NI Act that those provisions were “Notwithstanding anything contained in the Code of Criminal Procedure, 1973”, the said provisions added on the statute book by Amending Act 55 of 2002 with effect from 6th February 2003 were obviously intended to give over-riding effect over Section 200 of Code of Criminal Procedure which is on the statute book since the date of coming into force of the Code in 1974. 11. In view of the aforesaid it has been submitted by the respondents that after the addition of section 145, the correct procedure for issuing process in case affidavit is annexed along with the complaint with supporting documents would be, to issue the process made out without examining the complainant. 12. It would be appropriate to quote Sections 138, 139 and 140 of the NI Act added by Amending Act No. 66 of 1988 read as under : 138. 12. It would be appropriate to quote Sections 138, 139 and 140 of the NI Act added by Amending Act No. 66 of 1988 read as under : 138. Dishonour of cheque for insufficiency, etc., of funds in the account - Where 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, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years, or with fine which may extend to twice the amount of the cheque, or with both : Provided that nothing contained in this section shall apply unless (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier; (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice. Explanation - For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. 139. Explanation - For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability. 139. Presumption in favour of holder - It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque, of the nature referred to in Section 138, for the discharge, in whole or in part, of any debt or other liability. 13. Section 142 of NI Act lays down that cognizance can be taken of an offence punishable under Section 138 of the NI Act only upon a complaint in writing made by a payee or the holder of due course of the cheque, that such complaint has to be made within one month of the date on which the cause of action arose under Clause (c) or the proviso to Section 138, provided that the cognizance may be taken if the complainant satisfies the Court that he has sufficient cause for not making a complaint within such period. 14. Section 143(1) of NI Act, relevant for the purposes of the present controversy, reads as under : 143. Power of Court to try cases summarily. -(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 provisions of Sections 262 - 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials : As per the proviso to Section 143(1), a sentence of maximum one year and fine upto Rs. 5,000/-can be imposed in a summary trial, but for imposing any higher sentence or if the Magistrate considers appropriate for any other reason, the Magistrate may hear the case otherwise than summarily. Sub-section (2) of Section 143 requires the Magistrate to conduct the trial from day to day except for reasons to be recorded in writing. Sub- section (3) of Section 143 further provides that the trial shall be conducted expeditiously and preferably within six months from the date of filing of the complaint. Sub-section (3) reads as under : (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 15. Sub-section (3) reads as under : (3) Every trial under this section shall be conducted as expeditiously as possible and an endeavour shall be made to conclude the trial within six months from the date of filing of the complaint. 15. Section 144 of NI Act is also relevant as it provides for expeditious mode of service of summons by permitting such service to be made even by speed post or courier services. Even if the endorsement by the postal department or the courier services states that the accused refused to take delivery of summons, the Court may declare that the summons has been duly served. 16. Sections 145 and 146 of NI Act read 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. 17. It would also be relevant to take note of the decision by Apex Court in the case of Mosaraf Hossain Khan v. Bhagheeratha Engg. Ltd., (2006) 3 SCC 658 , the Apex Court has been pleased to hold that dishonour of a cheque by the bank causes incalculable loss, injury and inconvenience to the payee and the entire credibility of the business transactions within and outside the country suffers a serious setback. Remedy available in a civil Court is a long drawn process and an unscrupulous drawer normally takes various pleas to defeat the genuine claim of the payee. 18. The issue also reached upto Supreme Court in the case of M/s Mandvi Co-op Bank Ltd v. Nimesh B. Thakore (2010) 3 SCC 83 decided on 11th January 2010. In the aforesaid judgment, the Apex Court considered the provisions of Section 145 of NI Act in a slightly different context but held in unmistakable terms as under: 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. 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. Section 143 makes it possible for the complaints under Section 138 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 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.... 17. It is not difficult to see that Sections 142 - 147 lay down a kind of a special code for the trial of offences under Chapter XVII of the Negotiable Instruments Act and Sections 143 - 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 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. (emphasis supplied) 19. The Apex Court also referred in paragraph 18 of the said judgment to 213th Report of the Law Commission submitted to the Union Minister for Law and Justice on November 24, 2008 and noted the alarming number of complaints under Section 138 of the NI Act in various Courts including in the subordinate Courts in the State of Maharashtra (5,91,818 complaints as on 1st June, 2008). 20. The Apex Court further made the following pertinent observations in paragraph 32 of the said judgment : ...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 evidence. 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 the defence does lead any evidence, the nature of its evidence may not 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 between the nature of the complainant's evidence and the evidence of the accused in a case of dishonoured cheque.... (emphasis supplied) 21. It has been contended on behalf of the respondents that in the case of Banshilal (Supra), the judgment proceeds on the basis of observations made by the Apex Court in the case of National Small Industries Corporation Limited v. State (NCT Delhi), 2009 (3) MPLJ(SC) 600, without taking note of the fact that in the said case Magistrate had taken cognizance on 4th February, 2002, whereas the Amending Act, 2002 which incorporated Section 145 came into force from February 6, 2003. Thus, the judgment of National Small Industries (Supra) was distinguishable in the light of amendment carried out through Section 145 of the Act. This aspect has not been discussed in Banshilal's case (Supra). 22. However, what is discussed in the case of Rajesh Bhalchandra Chalke v. State of Maharashtra and Emco Dynatorq Pvt.Ltd :- (2011 ACD 64). which is a judgment delivered by Full Bench of Bombay High Court where also the issue was as to whether cognizance of an office under Section 138 of the Act could have been taken on the basis of an affidavit filed along with the complainant, after coming into force of amending provisions of the Act including Section 145. Some observations made in that case by the Full Bench appears to be relevant in this case which are reproduced hereunder :- 39. The contention of the learned Counsel for the accused that the Amending Act of 2002 only intended to expedite the stage of trial after issuance of process, without expediting the stage prior to issuance of process also, cannot be accepted. The contention of the learned Counsel for the accused that the Amending Act of 2002 only intended to expedite the stage of trial after issuance of process, without expediting the stage prior to issuance of process also, cannot be accepted. The very fact that when Parliament provided for time limit of six months for concluding the trial, it did not provide that the six months period would begin from the date of issuance of process. Parliament has specifically provided that endeavour shall be made to conclude the trial within six months from the filing of the complaint. Thus, having regard to the language of all the provisions added by the Amending Act of 2002 and the reasons in the Statement of Objects and Reasons, it is clear that Parliament had noted that Courts were unable to dispose of cases under Section 138 of NI Act expeditiously and in a time bound manner on account of the cumbersome procedure prescribed under Code of Criminal Procedure for the Courts to deal with such matters. It is thus clear that Parliament added Sections 143 - 147 for making the procedure simpler and gave these provisions overriding effect over Code of Criminal Procedure by enacting the non obstante clause. The view that appeals to us makes the procedure simpler and the view which is being canvassed on behalf of the accused would mean that the cumbersome procedure would still remain cumbersome. 40. We may now refer to decision of the Apex Court in National Small Industries Corporation Limited v. State (NCT of Delhi) and Others, (2009) 1 SCC 407 strongly relied upon by the learned Counsel for the accused and particularly paragraphs 15 and 16 of the judgment in support of the contention that Section 200 of the Code mandatorily requires examination of the complainant before issuance of process. 41. Reliance placed on the aforesaid decision is misconceived for the simple reason that in the above case before the Apex Court, the Magistrate took cognizance on 4th February 2002 without examining the complainant and its witnesses under Section 200 of Cr.P.C. The Amending Act 55 of 2002, however, came into force from 6th February 2003 and, therefore, in National Small Industries Corporation Ltd. (supra), the Apex Court was not required to apply the provisions of Section 145 of NI Act inserted by the Amending Act 55 of 2002. In that case, the only question the Apex Court examined was, as indicated in paragraph 13 of the judgment, who should be examined as the complainant under Section 200 of CrPC, where the complainant is an incorporeal body. The Court held that when the complainant is a body corporate, it is the de jure complainant and it must necessarily associate a human being as de facto complainant to represent the de jure complainant in Court proceedings. Usually, where the complainant is an incorporeal body represented by one of its employees, the employee who is a public servant is a de facto the complainant and in presenting complaint, he acts in the discharge of his official duties. Therefore, in such cases, the exemption under Clause (a) of provide to Section 200 of Code of Criminal Procedure will be available. The following observations in paragraph 13 of the judgment highlight the scope of the controversy which was resolved by the Apex Court: 13. ...When an offence is committed in regard to a transaction of the Government company, it will be illogical to say that a complaint regarding such offence, if made by an employee acting for and on behalf of the company will have the benefit of exemption under Clause (a) of the proviso to Section 200 of the Code, but a complaint in regard to very same offence, if made in the name of the company represented by the said employee, will not have the benefit of such exemption. The contention of the second Respondent, if accepted, would mean that whereas a complaint by “the Development Officer, NSIC” as the complainant can avail the benefit of exemption, the same complaint by “NSIC represented by its Development Officer” as the complainant will not have the benefit of exemption. Such an absurd distinction is clearly to be avoided. 23. The Full Bench reversed the judgment of the Division Bench of Bombay High Court, which proceeded on the footing of Section 200 Cr.P.C. continues to control the inquiry or trial even of an offence punishable under Section 138 of the Act without discussing overriding effect given by Parliament to Section 145 of the Act by providing the non-obstante clause notwithstanding anything contained in the Code of Criminal Procedure. 24. All these aspects were examined by this Court in the case of M/s Nobel Packaging, Peethampur (Supra). 24. All these aspects were examined by this Court in the case of M/s Nobel Packaging, Peethampur (Supra). The facts of this case which are now being disposed of by this petition are not different. Hence, all these petitions filed by the petitioners are dismissed in the light of the observations made by this Court in M/s Nobel Packaging's case. It is thus held :- (i) In view of the amendment of the Act, vide amendment Act, 2002, whereby provisions of Section 143, 144 and 145 of the Act have been amended/incorporated in the statute book for the purpose of issuing process under Section 200 of the Code of Criminal Procedure, 1973, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the Magistrate is not obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witnesses upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881. It is only if and where the Magistrate, after considering the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness is required, that the Magistrate may call upon the complainant to remain present before the Court and examine the complainant and/or his witness upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881. (ii) I am also of the view that there is nothing wrong in the complainant under Section 138 of the Negotiable Instruments Act, 1881 filing the affidavit in support of the complaint in a format indicating all the essential facts satisfying the ingredients of Section 138 of the Negotiable Instruments Act, 1881 for the purpose of enabling the Magistrate to decide whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1981. 25. Parties to appear before the Court below on the date already fixed. Record of the case is sent back along with the copy of this order. 25. Parties to appear before the Court below on the date already fixed. Record of the case is sent back along with the copy of this order. A Copy of this order be kept in every file. 26. C.C. as per rules.