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Madhya Pradesh High Court · body

2013 DIGILAW 532 (MP)

Mohanlal Agarwal v. G. C. M. Construction

2013-04-17

Brij Kishore Dube

body2013
ORDER 1. This petition under section 482 of CrPC has been filed by the petitioner for quashing the order dated 6.11.2007 passed by the Special Judicial Magistrate Gwalior in Criminal Case No. 13141/2007 (complaint) whereby on basis of complaint filed by the respondent herein, cognizance has been taken against the petitioner herein under section 138 of Negotiable Instruments Act (for short “the Act”) and directed to issue summon for his appearance before it. 2. The relevant facts for adjudication of the matter are that the respondent herein/complainant filed a complaint before the trial Court through its Director, Ashish Mittal and the power of attorney holder, Mukesh Kumar Mittal against the petitioner herein/accused for an offence punishable under section 138 of the Act alleging that the petitioner herein/accused has taken loan of Rs. 3,00,000/- on 23.6.2003 from the complainant. The petitioner has issued four cheques dated 13.8.2007 bearing Nos. 364961, 364962, 364963 and 364964 of Rs. 50,000/- each in favour of the complainant towards discharge of his liability. When the aforesaid cheques were presented by the complainant in the Bank for payment, the same were dishonoured and as amount was not paid by the petitioner in spite of notice of demand, therefore, the complainant filed a complaint under section 138 of the Act on 8.10.2007. The learned special Magistrate took cognizance of the offence by the impugned order which reads as under” **------------------ ifjoknh }kjk izLrqr ifjokn i=] leFkZu esa ‘kiFk i= ,oa nLrkostksa ds voyksdu ls vkjksih ds }kjk ijØkE; fy[kr vf/kfu;e] 1881 dh /kkjk 138 ds izko/kku ds varxZr n.Muh; vijk/k dkfjr djus gsrq i;kZIr vk/kkj gksus ls vijk/k dk laKku fy;k tkrk gSA ----------------** Being aggrieved thereof, this petition under section 482 of CrPC preferred by the petitioner herein/accused. 3. Shri R S Bansal, learned counsel appearing on behalf of the petitioner submits that since no statement of the respondent/complainant was recorded under section 200 or 202 of CrPC, therefore, taking cognizance and summoning the accused is bad in law, thus, the impugned order passed by the trial Court is illegal and deserves to be set aside. 3. Shri R S Bansal, learned counsel appearing on behalf of the petitioner submits that since no statement of the respondent/complainant was recorded under section 200 or 202 of CrPC, therefore, taking cognizance and summoning the accused is bad in law, thus, the impugned order passed by the trial Court is illegal and deserves to be set aside. Learned counsel has placed reliance on the following decisions: (1) Maharaja Developers and another v. Udaysingh Pratapsinghrao Bhonsle and another, 2007 CriLJ 2007 (Bombay); (2) National Small Industries Corporation Ltd. V. State (NCT of Delhi) and others, 2009 (2) MPHT 1 (SC) and (3) National Highways Authority of India and others v. Ramesh Kumar Suryawanshi and another, 2012 (2) MPHT 12 (CG). 4. In response, Shri Rajmani Bansal, learned counsel appearing on behalf of respondent herein/complainant submitted that in view of the sections 142 and 145 of the Act, taking cognizance on the basis of the complaint supported by an affidavit, the learned trial Court has not committed any illegality, therefore, prayed for dismissal of the petition. In support of his contention, he placed reliance on the following decisions: (1) Mandvi Cooperative Bank Limtied v. Nimesh B Thakore, (2010) 3 SCC 83 ; (2) M/s. Amita Gas Service and another v. Raman Gupta, 2010 (III) MPWN 106 = 2011 (1) MPHT 191 and (3) Sachin Agarwal v. State of Uttar Pradesh and others, 2012 CriLJ 577 (Allahabad). 5. I have considered the rival contentions of the learned counsel for the parties and perused the record. 6. Admittedly, the learned trial Court has taken cognizance against the petitioner under section 138 of theAct on the basis of complaint and affidavit of complainant, Ashish Mittal as well as other documents produced by the complainant in support of the averments made in the complaint. 7. The core question for consideration is that whether the learned trial Court erred in law by taking cognizance against the petitioner uner section 138 of the Act on the basis of affidavit sworn by complainant without recording his statement and statement of his witnesses under sections 200 and 202 of CrPC? 8. Section 200 of CrPC which deals with the cognizance of the offence reads as under: “ 200. 8. Section 200 of CrPC which deals with the cognizance of the offence reads as under: “ 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.” 9. Section 142 of the Act deals with cognizance of offence under the Act and section 145 of the Act deals with the evidence on affidavit. Sections 142 and 145 of the Act reads as under: “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.]” “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. 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.” 10. The effect of non-examination of the complainant on oath before taking cognizance in a case for commission of offence under section 138 of the Act has been considered by this Court in the case of Mahendra Kumar v. Armstrong and another, 2005 (2) MPLJ 419 , wherein it has been held that by non-examination of the complainant under section 200 of CrPC, the cognizance taken by the Magistrate under section 138 of the Act cannot be held illegal or without jurisdiction. In Abhilasha Agnihotri v. Dilip, ILR (2009) MP 1836, this Court also considered the matter and held that no illegality has been committed by the Court in taking cognizance against the applicant on the ground that the statement of complainant was not recorded under section 200 or 202 of CrPC. This court in the case of Jitendra Singh Kushwaha v. Bhajan Lal Rai, 2010 (II) MPJR 159 again reiterated that it is not incumbent on the Magistrate to record a statement of the complainant on oath. Cognizance can be taken on the basis of affidavit in support of the complainant. In M/s Amita Gas Service and another (supra) this Court considered the issue and held that where the trial Court took cognizance against the petitioners under section 138 of the Act on the basis of affidavit sworn by complainant and without recording the statement of complainant and his witnesses under sections 200 and 202 of CrPC, the Magistrate has not committed any illegality or irregularity. 11. 11. The High Court of Allahabad in the case of Sachin Agarwal (supra) held that the plea that the Magistrate was required to observe the provisions contained in sections 200 and 202 CrPC does not appear to have any substance especially when section 145 (1) of the Act contemplates taking of the complainant’s evidence on affidavit not only in the trial but also in any inquiry or other proceedings. 12. In the case of Maharaja Developers (supra) the complainant filed a complaint in writing on 21.4.2006 against the accused, Maharaja Developers and Vijay Tulsiramji Dangre under section 138 of the Act on account of dishonour of cheques issued by the accused in favour of the complainant and his sister. The said complaint contains a solemn affirmation by the complainant at the foot of it. The complainant also filed certain documents along with the complaint. On perusal of the complaint and the documents filed with it, the learned Magistrate has taken cognizance under section 138 of the Act, A Division Bench of the Bombay High Court after considering the relevant provisions of the NI Act and Criminal Procedure Code held that the non-obstante clause in section 142 or 145 of the NI Act does not override the provisions of section 200 of CrPC and it is mandatory for the Magistrate to examine the complainant who has filed the same under section 138 of the NI 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 CrPC though there is a solemn affirmation at the foot of the complaint by the complainant. In the aforesaid case, the complainant has not filed a separate affidavit. 13. In National Small Industries Corporation Ltd. (supra), the apex Court held that 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. 14. 14. In the case of National Highways Authority of India and others (supra) the respondents filed a complaint in the Court of Judicial Magistrate 1st Class, Raipur alleging commission of offence under section 138 of the Act of 1881 against the petitioners. The learned Magistrate after taking into consideration the contents of the complaint, took cognizance of the offence and issued process, against which, the petition under section 482 was preferred. A Single Bench of Chhattisgarh High Court held requirement of examination of complainant of oath even in cases of complaint alleging commission of offence under section 138 of the Act is mandatory, and therefore, the order taking cognizance is set aside, in the case in hand, the complainant has filed an affidavit in support of the complaint, which was not filed in the aforesaid case. 15. Section 145 of the Act has excluded the provisions of Criminal Procedure Code with regard to the manner in which evidence of complainant is to be taken. Section 145 (1) of the Act provides that 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 just exceptions be read in evidence in any inquiry, trial or other proceedings under the said Act. However, the Court has power in certain circumstances to examine the person giving evidence on affidavit either on the application of the prosecution or the accused and this provision is contained in sub-section (2) of section 145 of the Act. Therefore, according to the provisions of section 145 of the Act, the Magistrate was not legally required to examine the complainant and his witnesses as provided in section 200 of the Code of Criminal Procedure. The expressions “inquiry” and “other proceeding” used in section 145 (1) of the Act very well include the proceedings of the complaint case at the pre summoning stage, therefore, the affidavit could be filed and relied upon by the Magistrate in taking the cognizance. 16. In the case of M/s Mandvi Cooperative Bank Ltd. (supra) the Hon’ble Supreme Court very specifically helf that provisions of sections 143, 144, 145 and 147 of the Act have overriding effect on the Code of Criminal Procedure. Section 145 of the Act allows that the evidence of the complainant has to be given on affidavit. 17. 16. In the case of M/s Mandvi Cooperative Bank Ltd. (supra) the Hon’ble Supreme Court very specifically helf that provisions of sections 143, 144, 145 and 147 of the Act have overriding effect on the Code of Criminal Procedure. Section 145 of the Act allows that the evidence of the complainant has to be given on affidavit. 17. In view of the aforementioned factual and legal discussions, this Court does not find any substance in the petition worth for invoking inherent powers enshrined under section 482 of Criminal Procedure Code, therefore, the petition is hereby dismissed.