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2012 DIGILAW 450 (CAL)

In Re. : Devdan Mondal v. .

2012-05-14

KANWALJIT SINGH AHLUWALIA

body2012
JUDGMENT This Court on 10th May, 2012, had passed the following order : “Counsel of the parties are in agreement that the facts and issue of law raised in both the petitions are common. For facility of reference, facts are being gathered from Criminal Revision no. 3946 of 2011. In the present case the opposite party no.1, P. K. Kejarial had filed a complaint under Section 138 of the Negotiable Instruments Act in the Court of Chief Judicial Magistrate, Alipore. The complaint was taken up for hearing on 6th of March, 2007 by the Chief Judicial Magistrate, Alipore who passed an order wherein he stated that he had perused the petition of complaint, considered and cognizance is taken. Thereafter, the complaint was assigned to the Court of Fifth Judicial Magistrate at Alipore, South 24 Parganas. On the same day, i.e. 6th of March, 2007, the Judicial Magistrate stated that the complainant is present. Perused the evidence as deposition on affidavit and documents. “On perusal of above I am of the opinion that the complt. made out a prima facie case u/s.138 of N.I. Act against the accd. Person.” Thereafter summons were issued against the petitioner. To challenge the impugned order in these two petitions, summoning the petitioners to stand trail for offence under Section 138 of the Negotiable Instruments Act, counsel of the petitioner has relied upon Antony Vs. The State & Anr. reported in (2009)2 C Cr LR (Cal) 607 to contend that Sections 142 and 145 of the Negotiable Instruments Act contain a non-obstante clause. Counsel has emphasised on Section 145 of the Negotiable Instruments Act which stated – “notwithstanding anything contained in the Code of Criminal Procedure, 1973 the evidence of the complainant may be given by him on affidavit and may, subject to all exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code”. I have perused the judgment cited by counsel of the petitioner wherein it was held: “17. From the above discussions, I am of the considered view that the non-obstante Clause in Sections 142 or 145 of the N.I. Act does not override the provisions of Section 200 of Cr.P.C. and it is mandatory for the Magistrate to examine the complainant who has filed the same under Section 138 of the N.I. Act though with an affirmation as regards truthfulness of the contents of the complaint. It, therefore, follows that the Magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under Section 204 of Cr.P.C. though there is a solemn affirmation at the foot of the complaint by the complainant.” At this stage counsel for the petitioner has stated that there is no contrary judgment of the Supreme Court to the view formulated by this Court in Antony Vs. The State & Anr. (supra). Mr. Sandipan Ganguly, who is present, is appointed as amicus curiae in this case to assist this Court regarding the correct interpretation of law given on the issue by the Supreme Court. List on 14.5.2012.” 2. In pursuance of the order, Sri Sandipan Ganguly, amicus curaie, assisted by Mr. Ayan Bhattacharya, has brought to my notice two judgments of the Hon’ble Apex Court, namely, Mandvi Cooperative Bank Limited Vs. Nimesh B. Thakore, reported in (2010)2 SCC (Cri) 1 and Radhey Shyam Garg Vs. Naresh Kumar Gupta, reported in (2010)1 SCC (Cri) 980. 3. Ratio of law propounded by the Hon’ble Supreme Court in the above two judgments squarely overrule the ratio of law laid down in Antony’s case(supra) relied by the counsel for the petitioner. 4. It will be apposite here to reproduce para 2 and portion of para 10 of Radhey Shyam Garg (supra): “2. ……………cognizance of the offence was taken and summons was directed to be issued by an order dated 9-6-2004. Post-summoning evidence was also adduced by the complainant on 26-3-2007 by way of an affidavit. 10………………It contains a non obstante clause. The provisions of the Code of Criminal Procedure, 1973 are, thus, not attracted. The Court, subject to just exceptions, may allow the complainant to give evidence by way of an affidavit. Such an evidence by way of an affidavit had been made admissible in evidence in any enquiry, trial or other proceedings under the Code.” 5. A perusal of the Radhey Shyam Garg (supra) reveals that tendering of affidavits by the complainant at pre-summoning stage were accepted and it was further held that non-obstante clause in Section 145 of the Negotiable Instruments Act, 1881, states in specific terms that the provisions of the Code of Criminal Procedure are not attracted. 6. A perusal of the Radhey Shyam Garg (supra) reveals that tendering of affidavits by the complainant at pre-summoning stage were accepted and it was further held that non-obstante clause in Section 145 of the Negotiable Instruments Act, 1881, states in specific terms that the provisions of the Code of Criminal Procedure are not attracted. 6. In Mandvi Cooperative Bank Limited (supra) Their Lordships examined the entire gamut regarding the amendment made in the Negotiable Instruments Act, 1881, it’s necessity as matter of fact, and the object that it sought to achieve. It will be necessary to emphasise that in para 4 of the Mandvi Cooperative Bank Limited (supra), Their Lordships gave due consideration to the recommendation of the standing committee on finance and another representation and noted that the amendment was sought to be brought to the statute book to prescribe procedure for dispensing with preliminary evidence of the complainant. Para 4 of the said judgment reads as under: “4. ………………………..(iv) to prescribe procedure for dispensing with preliminary evidence of the complainant;” 7. It will also be necessary to reproduce para 20, 21, 23 and 34 of the judgment: “20. 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 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. 21. 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. 21. 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. Even while following the procedure of summary trials, the non obstante clause and the express “as far as possible” used in Section 143 coupled with the non obstante clause in Section 145 allow for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible (even in a summary trial under the Code of Criminal Procedure) in view of Sections 251 and 254 and especially Section 273 of the Code. The accused, however, is fully protected, as under sub-section (2) of Section 145 he has the absolute and unqualified right to have the complainant and any or all of his witnesses summoned for cross-examined. 2. 23. Section 145 with its non obstante clause, as noted above, makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant (or any of his witnesses) may be red in evidence “subject to all just exceptions”. In other words, anything inadmissible in evidence e.g. irrelevant facts or hearsay matters would not be taken in as evidence, even though stated on affidavit. 30. Nevertheless, the submissions made on behalf of the partis must be taken note of and properly dealt with. Mr. Ranjit Kumar, learned Senior Advocate, appearing for the appellant in appeal arising from SLP (Crl.) No.4760 of 206 pointed out that sub-section (2) of Section 145 uses both the words, “may” (with reference to the court) and “shall” (with reference to the prosecution or the accused). It was, therefore, beyond doubt that in the event an application is made by accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) without having any discretion in the matter. It was, therefore, beyond doubt that in the event an application is made by accused, the court would be obliged to summon the person giving evidence on affidavit in terms of Section 145(1) without having any discretion in the matter. There can be no disagreement with this part of the submission but the question is when the person who has given his evidence on affidavit appears in court, whether it is also open to the accused to insist that before cross-examining him as to the facts stated in the affidavit he must first depose in examination-in-chief and be required to verbally state what is already said in the affidavit.” 8. Thus, it is crystal clear that the judgment of Antony’s case (supra) relied no longer hold the field, in view of the judgments rendered by Hon’ble Apex Court, which have been extensively referred above. 9. Thus, the contention raised by the counsel for the petitioner is liable to be rejected at this stage. 10. Sri Sarkar counsel for the petitioner with all eloquence has contended that affidavits of the complainant were taken into consideration at pre-summoning stage without examining complainant on oath. 11. The affidavits given by the complainant at the pre-summoning stage alongwith the complaint, at the most, will become previous statement of the complainant with which he can be confronted later on filing of fresh affidavit by the complainant at the post-summoning stage, and in case complainant opt not to submit a fresh affidavit at the post-summoning stage, subject to consent given by the accused, affidavit given by complainant at pre-summoning stage can be taken into consideration, as examination-in-chief, provided, he, vouchsafes the authenticity of the affidavit already furnished by him. This is the procedure which can be followed and same take care of observations made in Mandvi Cooperative Bank Limited (supra) to emphasis that non obstante clause in Section 145 overrules the provisions contained in Section 200 of the Cr.P.C. 12. Thus, taken the totality of the circumstances, I find no merit in the arguments raised by the counsel for the petitioner. Resultantly the present revision petition is dismissed. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.