Smt. Rekha Singh vs Virendranath Mukherjee

T.P. Sharma, J.—By this petition u/s 482 of the Code of Criminal Procedure, 1973 (for short ''the Code''), the petitioner has prayed for quashment of the order dated 2-3-2012 passed by the 1st Additional Sessions Judge, Durg, in Criminal Revision No. 17/2012, affirming the order dated 20-1-2012 passed by the Judicial Magistrate First Class, Durg, in Criminal Complaint Case No. 929/2011, whereby the Trial Court has dismissed the application filed on behalf of the petitioner herein questioning the order taking cognizance and issuing process against the petitioner for the offence punishable u/s 138 of the Negotiable Instruments Act, 1881 (for short ''the Act''). Quashment is prayed on the ground that while taking cognizance and issuing process, the Trial Court has not made any enquiry into the complaint under Chapter XV of the Code and has not recorded the statement of the complainant u/s 200 of the Code, which is sine qua non for taking cognizance and proceeding further.

As per both the orders impugned, the respondent herein has filed criminal complaint against the petitioner for the offence punishable u/s 138 of the Act. The respondent has given evidence on affidavit and on the basis of evidence on affidavit, the Trial Court has registered criminal complaint against the petitioner and issued process. After making appearance, the petitioner has filed application for complying with the procedure declared by the Supreme Court requiring recording of statement of the complainant u/s 200 of the Code. After providing opportunity of hearing to the parties, the Trial Court has dismissed the application, same was challenged before the Revisional Court and the Revisional Court while affirming the order passed by the Trial Court, has dismissed the revision.

I have heard learned Counsel for the petitioner, perused both the orders impugned and copies of other documents.

Learned Counsel for the petitioner submits that in case of written complaint by private party, his examination on path u/s 200 of the Code is sine qua non, but in the present case, the respondent has failed to examine himself. Learned Counsel placed reliance in the matter of Banshilal Vs. Abdul Munnar, and on the order dated 19-10-2011 passed by Co-ordinate Bench of this Court in Cri. M.P. No. 128/2010, Raj Kumar Singhania Vs. Ashok Jain.

As per undisputed facts of the case, the respondent has filed complaint u/s 138 of the Act along with his evidence of affidavit. The Trial Court has not examined the complainant on oath before it and has taken cognizance against the petitioner, after registering the complaint, the Trial Court has issued process against the petitioner. 6. While dealing with the requirement of examination of the complainant on oath in accordance with Chapter XV of the Code, this Court in the matter of Amarjit Singh Vs. Jasjit Singh, , has held that evidence on oath in accordance with Section 145 of the Act is sufficient for taking cognizance and issuing process for the offence punishable u/s 138 of the Act.

After receiving complaint of the offence punishable under the law, the Magistrate is required to enquire into the matter in accordance with Chapter XV of the Code, i.e., Sections 200 to 204 of the Code. The word ''inquiry'' has been defined in clause (g) of Section 2 of the Code, which reads thus :-

(g) "inquiry" means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court.

The Negotiable Instruments Act, 1881, is a Special Act, which provides procedure for inquiry and trial. Section 145 of the Act relates to evidence on affidavit, which reads thus:-

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.

Section 145 of the Act says that 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 said Code.

While dealing with the question of requirement of statement of the complainant on oath in case of complaint filed for the offence punishable u/s 138 of the Act, the Supreme Court in the matter of Sabitha Ramamurthy and Another Vs. R.B.S. Channabasavaradhya, has held that the Court is required to insist strict compliance of the statutory requirement in compliance of Section 200 of the Code. The complainant is bound to make statement on oath as to how the offence has been committed and how the accused persons are responsible therefor. Para 7 of the judgment of the Supreme Court reads thus :-

A bare perusal of the complaint petitions demonstrates that the statutory requirements contained in Section 141 of the Negotiable Instruments Act had not been complied with. It may be true that it is not necessary for the complainant to specifically reproduce the wordings of the section but what is required is a clear statement of fact so as to enable the Court to arrive at a prima facie opinion that the accused are vicariously liable. Section 141 raises a legal fiction. By reason of the said provision, a person although is not personally liable for commission of such an offence would be vicariously liable therefor. Such vicarious liability can be inferred so far as a company registered or incorporated under the Companies Act, 1956 is concerned only if the requisite statements, which are required to be averred in the complaint petition, are made so as to make the accused therein vicariously liable for the offence committed by the company. Before a person can be made vicariously liable, strict compliance of the statutory requirements would be insisted. Not only the averments made in Paragraph 7 of the complaint petitions does not meet the said statutory requirements, the sworn statement of the witness made by the son of respondent herein, does not contain any statement that appellants were in charge of the business of the company. In a case where the Court is required to issue summons which would put the accused to some sort of harassment, the Court should insist strict compliance of the statutory requirements. In terms of Section 200 of the Code of Criminal Procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event, ultimately, the prosecution is found to be frivolous or otherwise malafide, the Court may direct registration of case against the complainant for malafide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of view.

While dealing with the question of applicability of the provisions of Section 145(1) of the Act, the Supreme Court in Mandvi Co-op. Bank Ltd. Vs. Nimesh B. Thakore, , has held that omission by Legislature to incorporate word ''''accused", with word "complainant" in Section 145(1) of the Act, accused cannot be allowed to tender his evidence on affidavit, though the complainant is permitted/allowed to tender his evidence on affidavit. The Supreme Court has observed in Paras 31 and 32 of its judgment as follows:-

On this issue, we are afraid that the High Court overreached itself and took a course that amounts to taking over the Legislative functions.

On a bare reading of Section 145, it is clear that the Legislature provided for the complainant to give his evidence on affidavit and did not provide for the accused to similarly do so. But the High Court thought that not mentioning the accused along with the complainant in sub-section (1) of Section 145 was merely an omission by the Legislature that it could fill up without difficulty. Even though the Legislature in their wisdom did not deem it proper to incorporate the word ''accused'' with the word ''complainant'' in Section 145(1), it did not mean that the Magistrate could not allow the accused to give his evidence on affidavit by applying the same analogy unless there was a just and reasonable ground to refuse such permission. There are two errors apparent in the reasoning of the High Court. First, if the Legislature in their wisdom did not think "it proper to incorporate a word ''accused'' with the word ''complainant'' in Section 145(1)......", it was not open to the High Court to fill up the self perceived blank. Secondly, 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 u/s 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. It is, therefore, wrong to equate the defence evidence with the complainant''s evidence and to extend the same option to the accused as well.

As held by the Supreme Court in Sabitha''s case (supra), the Court is required to insist strict compliance of the statutory requirement in terms of Section 200 of the Code.

As per Section 200 of the Code, the Court taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present. Special mode of examination of the complainant has been provided in Section 145 of the Act relating to evidence of the complainant on affidavit in any enquiry, trial or other proceeding. As per Section 200 of the Code, the Court is required to examine the complainant on oath. Procedure has been prescribed in Section 145 of the Act for examination of such complainant on affidavit in any enquiry, trial or other proceeding.

As held by the Supreme Court in the matter of M/s Mandvi (supra), the Legislature does not provide the facility of evidence on affidavit to the accused in accordance with Section 145 of the Act.

Therefore, it is clear from Section 200 of the Code, Section 145(1) of the Act, Section 2(g) of the Code, dictum of the Supreme Court in Sabitha ''s case (supra), M/s Mandvi''s case (supra), and that of this Court in Amarjit''s case (supra), that in case of complaint filed for the offence punishable u/s 138 of the Act, the Court is required to examine the complainant on oath and such evidence may be given by the complainant on affidavit in any enquiry, trial or other proceeding.

In Banshilal''s case (supra) and Raj Kumar''s case (supra), parties have not addressed the Court on the point of meaning, import and the purpose of the word "enquiry" used in Section 145 of the Act.

For the foregoing reasons, I do not find any illegality in taking cognizance against the petitioner and issuing process by the Court in case of complaint filed u/s 138 of the Act, on the basis of examination of the complainant on oath/on affidavit in terms of Section 145(1) of the Act, in the aforesaid enquiry. Consequently, the petition is dismissed. I.A. No. 1 stands disposed of.