Mohanlal Agarwal vs G.C.M. Construction Pvt. Ltd.

Brij Kishore Dube, J.—This petition u/s 482 of Cr.P.C. has been filed by the petitioner for quashing the order dated 6-11-2007 passed by Special Judicial Magistrate, Gwalior in Criminal Case No. 13141/2007 (complaint) whereby on the basis of complaint filed by the respondent herein, cognizance has been taken against the petitioner herein u/s 138 of Negotiable Instruments Act (for short "the Act") and directed to issue summons for his appearance before it. 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 u/s 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 the amount was not paid by the petitioner in spite of notice of demand, therefore, the complainant filed a complaint u/s 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:--

Being aggrieved thereof, this petition u/s 482 of Cr.P.C. preferred by the petitioner herein/accused.

Shri R.S. Bansal, learned Counsel appearing on behalf of the petitioner submits that since no statement of the respondent/complainant was recorded u/s 200 or 202 of Cr. PC, 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 Vs. Udaysingh Pratapsinghrao Bhonsle and Another, ;

(2) National Small Industries Corporation Ltd. Vs. State (NCT of Delhi) and Others, ; and

(3) National Highways Authority of India and others Vs. Ramesh Kumar Suryawanshi and another, .

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 Co-op. Bank Ltd. Vs. Nimesh B. Thakore, ;

(2) Amita Gas Service and Another Vs. Shri Raman Gupta, ; and

(3) Sachin Agarwal Vs. State of U.P. and Others, .

I have considered the rival contentions of the learned Counsel for the parties and perused the record.

Admittedly, the learned Trial Court has taken cognizance against the petitioner u/s 138 of the Act 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.

The core question for consideration is that whether the learned Trial Court erred in law by taking cognizance against the petitioner u/s 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 Cr.P.C.?

Section 200 of Cr. PC, which deals with the cognizance of the offence reads as under:--

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 u/s 192:

Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.

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:--

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 u/s 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 u/s 138.

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.

The effect of non-examination of the complainant on oath before taking cognizance in a case for commission of offence u/s 138 of the Act has been considered by this Court in the case of Mahendra Kumar Vs. Armstrong and Another, , wherein it has been held that by non-examination of the complainant u/s 200 of Cr. PC, the cognizance taken by the Magistrate u/s 138 of the Act cannot be held illegal or without jurisdiction. In Abhilasha Agnihotri Vs. 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 u/s 200 or 202 of Cr. PC. This Court in the case of Jitendra Singh Kushwaha Vs. Bhajan Lal Rai, , 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 u/s 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 Cr. PC, the Magistrate has not committed any illegality or irregularity.

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, Cr.P.C. 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.

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 u/s 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 u/s 138 of the Act. A Division Bench of the Bombay High Court after considering the relevant provisions of the N.I. Act and Criminal Procedure Code held that the non-obstante clause in Section 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 u/s 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 u/s 204 of Cr.P.C. 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.

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.

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 u/s 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 u/s 482 was preferred. A Single Bench of Chhattisgarh High Court held that requirement of examination of complainant on oath even in cases of complaint alleging commission of offence u/s 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.

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 includes 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.

In the case of M/s. Mandvi Co-operative Bank Ltd. (supra), the Hon''ble Supreme Court very specifically held 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. 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 u/s 482 of Criminal Procedure Code, therefore, the petition is hereby dismissed.