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2021 DIGILAW 519 (JK)

Ab. Rashid Bhat v. Gh. Ahmad Bhat

2021-09-29

SANJAY DHAR

body2021
JUDGMENT : Sanjay Dhar, J. 1. Petitioner has challenged order dated 20.09.2021, passed by Additional Sessions Judge, Sopore (hereinafter referred to as the Revisional Court), as also order dated 14.12.2018 passed by Judicial Magistrate, 1st Class, Dangiwacha (hereinafter referred to as the trial Magistrate). 2. Vide the order dated 14.12.2018, trial Magistrate, after taking cognizance of the offences alleged against the petitioner in a complaint filed by respondent under Section 138 of the Negotiable Instruments Act [for short "the Act"], issued process against the petitioner. The aforesaid order came to be challenged by the petitioner herein through the medium of a revision petition before the Revisional Court. The said revision petition came to be dismissed by the Revisional Court vide its order dated 20.09.2021. Both these orders are under challenge through the medium of instant petition filed under Section 482 of Cr.P.C. 3. The facts leading to the filing of this petition are that a complaint alleging commission of offence under Section 138 of the Act came to be filed by respondent before trial Magistrate. In support of the complaint, affidavits of the complaint and two witnesses were filed by the complainant and besides this, other documents like cheque, memo of dishonour and copy of notice etc. were also attached by the complainant with the complaint. The learned trial Magistrate took cognizance of the offence and issued process against the petitioner in terms of impugned order dated 14.12.2018, which, as already noted, was challenged by the petitioner by way of a revision petition but without any success. 4. The petitioner has challenged both the orders passed by the courts below, primarily, on two grounds. Firstly, it is contended that before taking cognizance of the offence, it was incumbent upon the trial Magistrate to record the statement of complainant and his witnesses on oath in terms of Section 200 of the Code of Criminal Procedure but instead of doing so, learned trial Magistrate entertained the affidavits of the complainant and his witnesses, which according to the petitioner is not permissible in law. 5. In order to test the merits of this contention, it is necessary to notice the provisions contained in Section 200 of the Code of Criminal Procedure. It reads as under: "200. 5. In order to test the merits of this contention, it is necessary to notice the provisions contained in Section 200 of the Code of Criminal Procedure. It reads as under: "200. Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate: Provided as follows- (a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192; (b) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties; (c) when the case has been transferred under section 192 and the Magistrate so transferring it already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant." 6. From a perusal of the aforesaid provision, it is clear that a Magistrate before taking cognizance of an offence on complaint has to examine on oath the complainant and his witnesses. However, Section 145 of the Act provides a special procedure for entertaining evidence on affidavits in inquiries and trials pertaining to offence under Section 138 of the Act. It 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." 7. From a perusal of the aforesaid provision, it is clear that so far as recording of evidence in proceedings relating to the offences under Section 138 of the Act is concerned, a departure from the normal procedure prescribed under Section 200 of Cr.P.C. is permissible. From a perusal of the aforesaid provision, it is clear that so far as recording of evidence in proceedings relating to the offences under Section 138 of the Act is concerned, a departure from the normal procedure prescribed under Section 200 of Cr.P.C. is permissible. The provision specifically provides that to the extent of entertaining evidence on affidavits, the provisions contained in the Code of Criminal Procedure would not apply in the proceedings relating to offence under Section 138 of the Act. 8. Now the question that arises for consideration is as to whether even at the pre-cognizance stage evidence on affidavits can be entertained. Sub-section (1) of Section 145, as quoted above, clearly suggests that affidavits can be read in evidence in any inquiry, trial or other proceeding under the Code. So, it is not only at post-cognizance stage i.e., at the time of trial of the case but also at the pre-cognizance stage that affidavits by way of evidence can be entertained by the trial Magistrate. I am supported in my aforesaid view by the judgment of the Supreme Court in the case of Indian Bank Association and others v. Union of India & others, (2014) 5 SCC 590 . Observations of the Supreme Court in para 18 of the said judgment are relevant to the context and the same are reproduced as under: "We have indicated that under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the Court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. Affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. In other words, there is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo moto by the Court. In other words, there is no necessity to recall and re- examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) Cr.P.C. and his examination, if any, can be done by a Magistrate and a finding can be given by the Court under Section 263(h) Cr.P.C. and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences." 9. The ratio laid down in the aforesaid judgment has been reiterated and reaffirmed by the Supreme Court in the case of Meters and Instruments Private Limited and another v. Kanchan Mehta, (2018) 1 SCC 560 . The following observations of the Supreme Court are relevant to the context and the same are reproduced as under: "18.5. Since evidence of the complaint can be given on affidavit, subject to the Court summoning the person giving affidavit and examining him and the bank's slip being prima facie evidence of the dishonor of cheque, it is unnecessary for the Magistrate to record any further preliminary evidence. Such affidavit evidence can be read as evidence at all stages of trial or other proceedings. The manner of examination of the person giving affidavit can be as per Section 264 Cr.P.C. The scheme is to follow summary procedure except where exercise of power under second proviso to Section 143 becomes necessary, where sentence of one year may have to be awarded and compensation under Section 357(3) is considered inadequate, having regard to the amount of the cheque, the financial capacity and the conduct of the accused or any other circumstances." 10. From the foregoing ratio laid down by the Supreme Court, it is clear that a Magistrate at the time of taking cognizance of offences under Section 138 of the Act is not obliged to record statements of the complainant and his witnesses on oath in terms of Section 200 of Cr.P.C. if the complainant and his witnesses file their affidavits by way of evidence. The contention of the petitioner that at pre-cognizance stage affidavits by way of evidence cannot be entertained, is without any merit and the same deserves to be rejected. 11. The next contention that has been vehemently argued and urged by learned Senior counsel appearing for the petitioner is that the trial Magistrate, while taking cognizance of the offence and issuing process against the petitioner, has passed a cryptic and unreasoned order which exhibits non-application of mind on his part and, as such, the same deserves to be set aside. The learned Senior counsel has contended that this aspect of the matter has not been dealt with by the Revisional Court at all. To buttress his contention that the Magistrate, while taking cognizance and issuing process against an accused, is expected to record satisfaction about prima facie case and that his order should indicate the reasons for deriving such satisfaction, the learned senior counsel has relied upon the judgment of the Supreme Court in the case of Sunil Bharti Mittal v. CBI, AIR 2015 SC 923 , Ashok Mal Bafna v. Upper India Steel Manufacturing and Engineering Company Limited, (2018) 14 SCC 202 and judgment dated September 27, 2021, passed by Supreme Court in Ravindranatha Bajpe v. Mangalore Special Economic Zone Ltd. & others (Criminal Appeal Nos. 1047-1048/2021). He has also relied upon the judgment of this Court passed in Geeta Devi v. Sudesh Kumar Sharma, 2010 (4) JKJ [HC] 257. 12. There can be no dispute with regard to proposition of law that a Magistrate, while taking cognizance of offence on the basis of a complaint and issuing process against the accused, has to apply his/her mind to the nature of allegations made in the complaint and the evidence in support thereof. It is only thereafter that Magistrate, pursuant to recording of satisfaction on the basis of legal principles that an offence is made out against the accused, can pass an order issuing process against the accused. It is only thereafter that Magistrate, pursuant to recording of satisfaction on the basis of legal principles that an offence is made out against the accused, can pass an order issuing process against the accused. Section 204 of Cr.P.C. clearly indicates that a Magistrate has to form an opinion that there is sufficient ground for proceeding before issuing a process against the accused. 13. The question, however, arises as to whether a Magistrate while taking cognizance and issuing process against the accused is required to record elaborate reasons in this regard. This question came up for consideration before the Supreme Court in the case of Bhushan Kumar and another v. State (NCT of Delhi) and another, (2012) 5 SCC 424 . The Supreme Court, while interpreting the provisions contained in Section 204 of Cr.P.C. and noticing its earlier judgments on the issue, observed as under: "13. Section 204 of the Code does not mandate the Magistrate to explicitly state the reasons for issuance of summons. It clearly states that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the summons may be issued. This section mandates the Magistrate to form an opinion as to whether there exists a sufficient ground for summons to be issued but it is nowhere mentioned in the section that the explicit narration of the same is mandatory, meaning thereby that it is not a pre--requisite for deciding the validity of the summons issued. 14. Time and again it has been stated by this Court that the summoning order under Section 204 of the Code requires no explicit reasons to be stated because it is imperative that the Magistrate must have taken notice of the accusations and applied his mind to the allegations made in the police report and the materials filed therewith. 15. In Kanti Bhadra Shah & Anr. Vs. State of West Bengal (2000) 1 SCC 722 , the following passage will be apposite in this context: "12. If there is no legal requirement that the trial court should write an order showing the reasons for framing a charge, why should the already burdened trial courts be further burdened with such an extra work. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. The time has reached to adopt all possible measures to expedite the court procedures and to chalk out measures to avert all roadblocks causing avoidable delays. If a Magistrate is to write detailed orders at different stages merely because the counsel would address arguments at all stages, the snail-paced progress of proceedings in trial courts would further be slowed down. We are coming across interlocutory orders of Magistrates and Sessions Judges running into several pages. We can appreciate if such a detailed order has been passed for culminating the proceedings before them. But it is quite unnecessary to write detailed orders at other stages, such as issuing process, remanding the accused to custody, framing of charges, passing over to next stages in the trial." (emphasis supplied) 16. In Nagawwa vs. Veeranna Shivalingappa Konjalgi & Ors., this Court held that it is not the province of the Magistrate to enter into a detailed discussion on the merits or demerits of the case. It was further held that in deciding whether a process should be issued, the Magistrate can take into consideration improbabilities appearing on the face of the complaint or in the evidence led by the complainant in support of the allegations. The Magistrate has been given an undoubted discretion in the matter and the discretion has to be judicially exercised by him. It was further held that: "5. ..... Once the Magistrate has exercised his discretion, it is not for the High Court, or even this Court, to substitute its own discretion for that of the Magistrate or to examine the case on merits with a view to find out whether or not the allegations in the complaint, if proved, would ultimately end in conviction of the accused." 17. In Dy. Chief Controller of Imports & Exports vs. Roshanlal Agarwal & Ors. (2003) 4 SCC 139 , this Court, in para 9, held as under: "9. In determining the question whether any process is to be issued or not, what the Magistrate has to be satisfied is whether there is sufficient ground for proceeding and not whether there is sufficient ground for conviction. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. Whether the evidence is adequate for supporting the conviction, can be determined only at the trial and not at the stage of inquiry. At the stage of issuing the process to the accused, the Magistrate is not required to record reasons. This question was considered recently in U.P. Pollution Control Board v. Mohan Meakins Ltd. (2000) 3 SCC 745 and after noticing the law laid down in Kanti Bhadra Shah v. State of W.B. (2000) 1 SCC 722 , it was held as follows: (SCC p. 749, para 6) 'The legislature has stressed the need to record reasons in certain situations such as dismissal of a complaint without issuing process. There is no such legal requirement imposed on a Magistrate for passing detailed order while issuing summons. The process issued to accused cannot be quashed merely on the ground that the Magistrate had not passed a speaking order." 18. In U.P. Pollution Control Board vs. Dr. Bhupendra Kumar Modi & Anr., (2009) 2 SCC 147 , this Court, in paragraph 23, held as under: "23. It is a settled legal position that at the stage of issuing process, the Magistrate is mainly concerned with the allegations made in the complaint or the evidence led in support of the same and he is only to be prima facie satisfied whether there are sufficient grounds for proceeding against the accused." 19. This being the settled legal position, the order passed by the Magistrate could not be faulted with only on the ground that the summoning order was not a reasoned order." 14. Again, the Supreme Court has, in the case of Mehmood-ul-Rehman v. Khazir Mohd. Tunda & Ors., (2015) 12 SCC 420 , observed that no formal or speaking or reasoned orders are required at the stage of Sections 190/204 Cr.P.C. The Court further observed that there should be sufficient indication in the order about the satisfaction of the Magistrate regarding making out of offences against the accused. 15. Tunda & Ors., (2015) 12 SCC 420 , observed that no formal or speaking or reasoned orders are required at the stage of Sections 190/204 Cr.P.C. The Court further observed that there should be sufficient indication in the order about the satisfaction of the Magistrate regarding making out of offences against the accused. 15. Thus, upon consideration of the ratio laid down by the Supreme Court and this Court in the cases referred to and relied upon by the petitioner as also the ratio laid down by the Supreme Court in the case of Bhushan Kumar and another and Mehmood ul Rehman(supra), it can safely be concluded that while a Magistrate is expected to form an opinion as to the existence of sufficient grounds for proceeding after due application of mind, indication whereof should be discernible from the order of issuance of process that may be passed by the Magistrate, but at the same it is not necessary for the Magistrate to offer elaborate reasons for passing such an order. The only requirement is that the order of the Magistrate has to indicate that there has been application of mind on the part of the Magistrate to the material on record and the averments made in the complaint. 16. In the light of aforesaid legal position, let us now proceed to analyze the impugned order dated 14.12.2018 that has been passed by the learned trial Magistrate while issuing process against the petitioner. In the order impugned, which is in Urdu, it is recorded that the Magistrate has carefully gone through the complaint, the cheque, the bank memo and the other documents and upon considering the same, in his opinion, there is sufficient material to proceed against the accused for commission of offences under Section 138 read with Section 142 of the Act. 17. The aforesaid order clearly indicates the particulars and details of the material that has been considered by the Magistrate while forming his opinion that the offences are made out against the accused/petitioner. Thus, it is not a case where the learned Magistrate has failed to indicate the particulars of the material on the basis of which he has derived his satisfaction. Thus, it is not a case where the learned Magistrate has failed to indicate the particulars of the material on the basis of which he has derived his satisfaction. Merely because the learned Magistrate has not given elaborate reasons by repeating and reiterating the allegations made in the complaint does not make the impugned order cryptic or devoid of application of mind on the part of learned Magistrate. 18. Apart from the above, the petitioner has nowhere urged in his petition nor did learned Senior counsel appearing on his behalf contend at any stage of arguments that the offences of which the learned Magistrate has taken cognizance are not made out against the petitioner. Therefore, it is virtually not in dispute that the material on record before the Magistrate prima facie discloses commission of offences against the petitioner. Thus, the satisfaction recorded by the learned Magistrate in the impugned order is based on credible material. The same does not warrant any interference by this Court. 19. For the foregoing reasons, I do not find any merit in this petition. The same is, accordingly, dismissed in limini along with connected CrlM.