Madras High Court
Nellaiappan vs Samuvel on 5 January, 2008
Author: S.Nagamuthu
Bench: S.Nagamuthu
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT Dated : 05/01/2008 Coram The Honourable Mr.Justice S.NAGAMUTHU Crl.OP.Nos.8863 of 2005 Crl.OP.NOs. 8864 of 2005 and Crl.MP.Nos.5765 and 5767 of 2005 Nellaiappan ...Petitioner -vs- Samuvel ...Respondent Petitions to call for the records and quash the private complaint in STC.Nos. 1155 of 2005 and 1180 of 2005 pending on the file of the learned Judicial Magistrate, Sivagiri. !For Petitioner ... Mr.G.Thalaimutharasu ^For Respondent ... Mr.D.Malaichamy in Crl.OP.No.8863 of 2005 Mr.S.Kumarsan in Crl.OP.No.8864 of 2005 :COMMON ORDER
An important question of law has arisen for consideration in the above two petitions. Both in STC.No.1155 of 2005 and 1180 of 2005, the petitioner is the sole accused and the respondent is the complainant. The offence alleged against the petitioner in both the cases is one under Section 138 of the Negotiable Instruments Act. Seeking to quash the same, the petitioner has come forward with these petitions.
2. Though several grounds have been raised in these petitions, the learned counsel for the petitioner mainly urges that the order of the learned Magistrate issuing summons to the petitioner to appear is illegal and therefore, the entire case is liable to be quashed. According to him, though the learned Magistrate took cognizance of the offence, he did not record any statement of the complainant as required under Section 200 Cr.P.C. or the statement of witnesses as required under Section 202 Cr.P.C. before coming to the conclusion that it is a fit case where process has to be issued for the appearance of the petitioner under Section 204 Cr.P.C.
3. But the learned counsel for the respondent would submit that Section 145 of the Negotiable Instruments Act enables the complainant to let in evidence by means of an affidavit and in both the cases on hand, instead of recording statement of the complainant under Section 200 Cr.P.C., the learned Magistrate has accepted affidavit of the respondent/ complainant and thus there is no illegality in the procedure adopted by the learned Magistrate.
4. There were arguments and counter arguments advanced by the learned counsel in respect of the stage at which, on presentation of the complaint before the Magistrate, cognizance is taken by him. One of the arguments is that the cognizance is taken only at the stage when the Magistrate decides to issue process to the accused under Section 204 Cr.P.C. The counter argument advanced is that the cognizance is taken at the stage only after recording the statement under Section 200 Cr.P.C. and not before that. To find a solution to these arguments and counter arguments, it is necessary to refer to the judgment of the Honourable Supreme Court reported in (2005) 7 SUPREME COURT CASES 467 - CREF FINANCE LTD v. SHREE SHANTHI HOMES (P) LTD. In paragraph 10 of the said judgment, the Honourable Supreme Court has held as follows:-
" In the instant case, the appellant had filed a detailed complaint before the Magistrate. The record shows that the Magistrate took cognizance and fixed the matter for recording of the statement of the complainant on 1.6.2000. Even if we assume, though that is not the case, that the words "cognizance taken"
were not to be found in the order recorded by him on that date, in our view that would make no difference. Cognizance is taken of the offence and not of the offender and, therefore, once the court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizance and examining the complainant on oath, the court may come to the conclusion that no case is made out for issuance of process and it may reject the complaint. It may also be that having considered the complaint, the Court may consider it appropriate to send the complaint to the police for investigation under Section 156(3) of the Code of Criminal Procedure. We can conceive of many other situations in which a Magistrate may not take cognizance at all, for instance, a case where he finds that the complaint is not made by the person who in law can lodge the complaint, or that the complaint is not entertainable by that Court, or that cognizance of the offence alleged to have been committed cannot be taken without the sanction of the competent authority, etc. These are cases where the Magistrate will refuse to take cognizance and return the complaint to the complainant. But if he does not do so and proceeds to examine the complainant and such other evidence as the complainant may produce before him then, it should be held to have taken cognizance of the offence and proceeded with the inquiry. We are, therefore, of the opinion that in the facts and circumstances of this case, the High Court erred in holding that the Magistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal. "
5. A thorough reading of the said judgment of the Honourable Supreme court would make it manifestly clear that cognizance is taken as soon as the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. On such perusal, if he finds that there are prima facie materials to show that offence has been committed, then he shall proceed to record the statement under Section 200 Cr.P.C. On the contrary, if he finds that there is no offence made out, the learned Magistrate should return the complaint thereby refusing to take cognizance.
6. After having taken cognizance, as held by the Honourable Supreme court, the Magistrate is required to record statement under Section 200 Cr.P.C. from the complainant and witnesses present and also statement of witnesses as required under Section 202 Cr.P.C. In both the cases, the learned Magistrate instead of recording such statements, has chosen to accept affidavits filed by the complainant and on that basis he has proceeded to issue process to the accused under Section 204 Cr.P.C. The question is whether the said procedure is legally correct or not. A learned single Judge of the Karnataka High Court in a decision reported in K.SRINIVASAN v. KASHINATH (2004 CRL. L.J 4566), has held that the Magistrate can dispense with the recording of the sworn statement of the complainant and the witnesses by accepting their affidavits and because of the said procedure, no prejudice shall be caused to the accused. The learned Judge has referred to Section 145(2) of the Negotiable Instruments Act to find favour with his conclusion. The learned Judge has also referred to Section 296 Cr.P.C. Similar view has been taken by the Orissa High Court in the case of PANDA LEASING AND PROPERTIES LTD., v. HEMANT KUMAR MOHARANA reported in (2005(I) OLR 586). The Bombay High Court has also taken the similar view in MAMATADEVI PRAFULLAKUMAR BHANSALI v. PUSHPADEVI KAILASHKUMAR AGRAWAL AND ANR. (2005(2) Mh LJ 1003). With great respect, I am not able to persuade myself to concur with the said view expressed by the learned Judges. As pointed out earlier, the Karnataka High court in the decision reported in 2004 CRL.L.J. 4566 (cited supra), has referred to Section 145 of the Negotiable Instruments Act and Section 295 of the Cr.P.C. which are as follows:-
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.
296. Evidence of formal character on affidavit.-(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit.
In the said judgment, while referring to these two provisions, the learned Judge has held as follows:
".......... It is settled principle of interpretation of statutes that whenever any Act is enacted, it should be construed in such a way so as to give effect to the object of the "Act" for which the enactment was introduced. Otherwise, the very purpose of introduction such legislation would be rendered useless. In the background of this principle, if Section 145 of the "Act" is read along with the Statement of objects and reasons, it is clear that the procedure is prescribed for dispensing with recording of preliminary evidence (sworn statement) of the complainant which saves the cost as well as the valuable time of the court. Such procedure, will not in any way affect or prejudice the right of accused as it is always open for him to file an application under Section 145(2) to summon and examine any person giving evidence on affidavit as to the facts contained therein and rebut the averments made in the affidavit filed by the complainant and his witnesses. The word "evidence" is a broader term than the word "sworn statement", in view of introduction of Section 145 of the Act and can proceed further, if the affidavit filed by the complainant makes out prima facie case against the accused. Even when the sworn statements of the complainant and his witnesses are recorded under Section 200 of Cr.P.C the said statements are not tested by the cross examination at that stage of the proceedings. The Court has to mainly rely upon the uncross-examined or untested sworn statement, 'which is generally one sided, at the time of issuing process. In view of the same, no prejudice or injustice will be caused to the accused, if the process is issued against the accused on the basis of the affidavit filed by the complainant and his witness without recording the sworn statement. The affidavits, though, are not included in Section 3 of evidence Act, the same can be used as evidence, if the law specifically permits certain matters to be provided by affidavit. If the accused wants to test the correctness of material found in such affidavits, he has always an opportunity to do so by filing the application under Section 145(2) of the "Act" for summoning the complainant or his witness for cross examination. Thus, it is clear that Section 145 of the Act is introduced with a view to dispense with recording of sworn statement of the complainant and his witnesses before issuing process.
8. The wordings found in Section 145 of the Act are more or less similar to Section 296 of the Code of Criminal Procedure which reads thus:
296. Evidence of formal character on affidavit.-(1) The evidence of any person whose evidence is of a formal character may be given by affidavit and may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceeding under this Code.
(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any such person as to the facts contained in his affidavit. "
9. As could be seen from Section 296 Cr.P.C., if the evidence is of a formal character, the same can be obtained by way of an affidavit. ......."
7. But in my considered opinion, Section 145 of the Negotiable Instruments Act and Section 296 Cr.P.C. deal only with evidence. But what is recorded under Section 200 Cr.P.C. is not evidence as the same is only a statement. The term 'evidence' has not been defined either in the Negotiable Instruments Act or in the Cr.P.C. Therefore, the definition given in the Evidence Act has to be taken into account. Section 3 of the Indian Evidence Act defines the term 'evidence' as follows:
"Evidence" means and includes-
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court.
such documents are called documentary evidence.
8. A plain reading of the above definition would show that what is made before the Court by way of statement alone is oral evidence, which shall not include either written statement or an affidavit. Section 1 of the Evidence Act clears doubt, if any, on this. Section 1 of the Evidence Act is to the following effect, "It extends to the whole of India (except the State of Jammu and Kashmir) and applies to all judicial proceedings in or before any Court, including Courts- martial, (other than courts-martial convened under the Army Act) ... but not to affidavits presented to any Court or officer, nor to proceedings before an arbitrator; and it shall come into force on the first day of September, 1872. "
(Emphasis supplied) Thus, an affidavit filed before the Court can never be treated as evidence, unless any other law permits the same.
9. Section 145 of the Negotiable Instruments Act and Section 296 of Cr.P.C. permit letting in evidence by means of affidavits which are exceptions to Section 1 of the Evidence Act. So, instead of letting in oral evidence during the trial of a case, as provided under Section 145 of the Negotiable Instruments Act and Section 296 Cr.P.C., affidavit can be filed as evidence. However, the adverse parties have been given right to summon the deponent to cross examine. So far as statement under Section 200 or 202 Cr.P.C is concerned, there is no such right of cross examination and so neither under Section 145 of the Negotiable Instruments Act nor under Section 296 of Cr.P.C. they can be termed as evidence.
10. To appreciate the object behind Section 200 Cr.P.C., which provides for recording a sworn statement of the complainant, I have to refer to the 41st report of the Law Commission of India, wherein the Commission has stated as follows:-
"16.5 One question for our consideration was whether a complainant must always appear in court to support his complaint, unless the complainant be a court or a public servant already excepted by section 200, or whether he can be permitted to be examined on commission and perhaps, send his written complaint to the court through post. We are clear that the making of a complaint is a formal act with legal consequences and it must be done formally in person or through properly appointed counsel and the complainant must be ready to support it with his sworn statement in Court. The provision for a commission is contained in Section 503 of the Code and it contemplates only the witnesses' examination on commission. Although therefore some courts have at times allowed a commission to be issued for the examination of a complainant, we are not in favour of encouraging such a practice." (Emphasis supplied)
11. The Law Commission has very clearly stated that sworn statement should be made in Court since it has got its own legal consequences. The Law Commission has further held that even recording of such statement by appointing a Commissioner cannot be permitted since the examination of a witness on commission alone is permissible. A close reading of Section 200 Cr.P.C. and the 41st report of Law Commission as extracted above would leave no doubt that it is mandatory that a Magistrate is obliged to record the statement of the complainant under Section 200 Cr.P.C and the witnesses present and the other witnesses under Section 202 Cr.P.C. Proceeding with an affidavit and on acting upon the same to decide whether to summon the accused under Section 204 Cr.P.C or to dismiss the complaint under Section 203 Cr.P.C. shall not be a correct procedure. In my considered opinion, with great respect to the Honourable Judges of Karnataka, Orissa and Bombay High Courts, the findings rendered in the decisions cited supra do not reflect the correct legal position. The view expressed by the Honourable Judges that receiving such affidavits and acting upon them by the Magistrates, would not cause any prejudice to the accused, in my considered opinion, cannot persuade me. Issuing of summons to the accused has got its own legal consequences, which is not a formal act but a very serious judicial act. Having considered the 41st report of the Law Commission which speaks of recording of the statement of the complainant under Section 200 Cr.P.C. and of the witnesses under Section 202 Cr.P.C., I am of the view that courts of law cannot dispense with the same as the same would offend the very object of the provisions as well as the legislative intent. For all these reasons, I am of the considered opinion that the procedure adopted by the learned Magistrate in both the cases in dispensing with the recording of the statement of the complainant under Section 200 Cr.P.C. and accepting the affidavit of the complainant in its place is not legal and the process issued to the petitioner under Section 204 Cr.P.C is not sustainable. Therefore, the same is liable to be quashed. But, for the procedure adopted by the Court, which has no sanction of law, I cannot allow the respondent/ complainant to suffer prejudice by simply quashing the entire case. Having considered all the above, the following order is passed.
12. The order of the learned Magistrate taking cognizance of the offence is confirmed. However, the order of the learned Magistrate issuing process under Section 204 Cr.P.C to the petitioner alone is quashed. The learned Magistrate is directed to record the statement of the complainant under Section 200 Cr.P.C. and his witnesses if any under Section 200 or 202 Cr.P.C. and then decide whether to dismiss the complaint under Section 203 Cr.P.C. or to issue process to the petitioner under Section 204 Cr.P.C. The above two petitions are disposed of accordingly. Consequently, connected MPs are closed.
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