Bombay High Court
M/S.Reliance Industries Ltd. } vs The State Of Maharashtra on 17 March, 2010
Author: R.G.Ketkar
Bench: P.B.Majmudar, R.G.Ketkar
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.287 AND 288 OF 2009
M/s.Reliance Industries Ltd. }
A Company incorporated under the Companies Act, 1956 }
having its registered office at Maker Chambers-IV, }
rd
3 floor, Nariman Point, Mumbai-400 021. }
through its General Manager, Mr.Randhir Pachichigar } Appellant
Vs.
1. The State of Maharashtra
ig }
2. M/s.Patodia Textiles Industries Ltd., a Company }
duly registered under the Companies Act, 1956, }
having its office at Solaris 1-A, 6th Floor, }
Saki-Vihar Road, Andheri (W), Mumbai - 400 072. }
3. Indra Kumar Patodia }
4. Mahendra Kumar Patodia }
Nos.3 and 4 both of Mumbai, Indian Inhabitants, }
Directors of No.2 above named, having their }
th
office at Solaria 1-A, 6 Floor, Saki-Vihar Road, }
Andheri (West), Mumbai-400 072. } Respondents
.........
In both Appeals:-
Mr.Amit Desai, Senior Advocate with Mr.Ganesh Bhujbal and Mr.Gopalkrishan
Shenoyinstructed by Mr.Prakash Naik for the appellants.
Smt.V.R.Bhosale, Addl. Public Prosecutor, for the State-respondent No.1.
Mr.A.M.Saraogi with Mr.S.A.Jabhar, Smt.Leema Gupta and Mr.B.C.Gandhi,
instructed by Mr.K.C.Pandey, for respondent Nos.2 to 4.
.........
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2
CORAM : P.B.MAJMUDAR &
R.G.KETKAR, JJ.
DATE : 17th AND 18th MARCH, 2010.
ORAL JUDGMENT (Per R.G.Ketkar, J.)
The learned single Judge of this Court (A.R.Joshi,J.) by order dated July 9, 2009 has referred following two points for the determination by the Larger Bench, and accordingly, this Court is required to consider the following two points in these appeals for our decision:-
Point (1): In the matter of complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, whether the complaint without the signature of the complainant, inspite of verification of complaint, is `non entia' and whether no prosecution can lie on such complaint?
Point (2): If answer to point No.1 is negative then whether it is a mere irregularity and it can be cured subsequently and whether such subsequent amendment would relate back to the date of filing of the complaint or whether it would hit by the Law of Limitation.
2] On behalf of the appellants in both the appeals (hereinafter referred to as "the complainants"), reliance was placed upon the judgment of the learned single Judge (R.K.Batta, J.) in the case of Vijay s/o.Ganesh Gondhalekar and cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 3 another Vs. Ramchandra s/o.Girdharilal Sarda and another, 2003(1)Mh.L.J.47.
On the other hand, on behalf of respondent nos.2 to 4 in both the appeals (hereinafter referred to as "the accused"), reliance was placed upon the judgment of the learned single Judge of this Court (V.R.Kingaonkar, J.) in the case of Roy Joseph Vs. Sk.Tamisuddin, 2008(3)Mh.L.J.705. The learned Judge was of the opinion that the points in question are required to be decided by the Larger Bench in view of the conflicting views expressed in two different judgments by the two learned single Judges. Accordingly, as pointed out above, the aforesaid points have been referred for our consideration in these appeals.
3] Criminal Appeal No.287 of 2009 arises from complaint numbered as CC No.1866/SS/07 filed under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act"). The complaint was presented before the learned Metropolitan Magistrate, 16th Court, Ballard Pier, Mumbai (for short "the Magistrate") on June 3, 2008 alleging that the accused issued 57 cheques drawn on Laxmi Vilas Bank., Fort, Mumbai, of the total value of Rs.3,21,52,204/-. The said cheques were issued by the accused between December 2, 1997 and March 9, 1998. The cheques were deposited by the complainant on April 5, 1998 and were returned by the Bank on April 6, 1998 with the remark "exceeds arrangement". The complainant issued notice through its Advocate on April 16, 1998 to the accused recording various facts and demanded the aforesaid cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 4 amount. Reply was given by the accused through their Advocate on May 4, 1998 denying the allegations made in the notice. It is in these circumstances the complaint was presented through Mr.Lewellyn Joseph Gratian Rego, Senior Manager (Accounts) before the learned Magistrate on June 3, 1998. The learned Magistrate made the following endorsement on the complaint:-
"Presented by the complainant in person. Keep for verification on 30th July, 1998.
Sd/-
3 June, 1998"
rd It is not in dispute that this complaint was not signed by the authorised representative of the complainant. The complaint was verified on July 30, 1998 by the Senior Manager (Accounts) Mr.Lewellyn Joseph Gratian Rego. The verification statement was duly signed by the said Rego. The learned Magistrate passed the following order:-
"Issue summons against accused under Section 138/142 of the N.I. Act, returnable on 7/4/1999.
Sd/-
3/12/1998"
4] In so far as Criminal Appeal No.288 of 2009 is concerned, somewhat similar facts arise therein. In that case the accused issued 58 cheques drawn on the Indian Overseas Bank, Nariman Point, Mumbai of total value of Rs.2,24,98,369/-. The said cheques were issued by the accused cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 5 between December, 1997 and March 8, 1998. The cheques were presented by the complainant April 5, 1998. All cheques were returned unpaid by the Bank on April 6, 1998 with the remark "refer to drawer". By its advocate's notice dated April 16, 1998, the complainant recorded various facts and demanded payment of the said amount. On behalf of the accused, reply through advocate was give on May 4, 1998. It is in these circumstances, the complaint No.1865/SS/2007 was presented before the learned Magistrate on June 3, 1998 through Mr.Lewellyn Joseph Gratian Rego, Senior Manager (Accounts). The learned Magistrate made following endorsement :-
"Presented by the complainant in person. Keep for verification on 30/7/98.
Sd/-.
3/6/1998"
The complaint was verified on July 30, 1998, by the Senior Manager (Accounts) Mr.Lewellyn Joseph Gratian Rego, The verification statement was duly signed by the said Rego. The learned Magistrate passed the following order:-
"Issue summons against accused under Section 138/142 of the N.I. Act, returnable on 7/4/1999 Sd/-
3/12/1998"
5] It is not in dispute that the complaint was not signed by the cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 6 authorised representative of the Company. It is in these circumstances, the applications were moved by the accused in both the complaints on May 15, 2003 for recalling the process. It was inter alia contended that the complaints were not signed by Mr.Rego, who had presented the complaints and that Vakalatnama in favour of M/s.Dave and Company was also not signed by Mr.Rego. It was submitted that the alleged complaints are bad in law and the subsequent proceeding pending before the Court on the basis of the alleged complaints is also bad in law. It was further submitted that cognizance taken by the learned Magistrate on the basis of the alleged complaints which were not signed by or on behalf of the complainant, was bad in law and the entire subsequent proceedings taken before the Court, were bad in law. It was ultimately submitted that the complaints are liable to be dismissed and process issued against the accused deserves to be recalled.
6] The complainant replied the said applications and denied that the complaints are bad in law for non signing of the complaints and Vakalatnama. It was also submitted that the learned Magistrate has taken cognizance of the offence after verification was signed by the complainant and the complaints are valid in law. Reliance was placed upon a judgment of the learned Single Judge of this Court in the case of Vijay (supra) and it was submitted that non signing of the complaint when the verification is signed, does not vitiate the complaint. The cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 7 learned Magistrate rejected the applications by order dated August 28, 2003.
The order was carried in Revision Applications before the Sessions Court, Greater Mumbai. By order dated October 8, 2004, the Revision Applications were dismissed on the ground of maintainability.
7] On behalf of the complainant, Affidavit in lieu of the examination-in-
chief was filed on or about August 22, 2008. In both the complaints, applications at Exhibit 7 under Section 136 of the Indian Evidence Act, 1872 were taken out by the accused on August 11, 2008, inter alia contending that the complaints under Section 138 of the Act are not maintainable in law as they are not signed by the complainant. If that be so, the question of filing of affidavits of evidence does not arise. This was replied by the complainant inter-alia contending that filing of such applications is nothing but an abuse of process of law and ought to be dismissed with exemplary costs. After narrating the background, a prayer was made to reject the applications with costs.
8] The learned Magistrate by the impugned orders dated November 26, 2008 below exhibit 7 came to the conclusion that the unsigned and verified complaints are illegal and as such are liable to be dismissed. He, accordingly, acquitted the accused. It is against these orders, the two applications seeking leave to appeal were preferred. The learned Single Judge granted leave to appeal and issued notices on the appeal to the accused for final disposal at the cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 8 stage of admission. In the light of judgment in the cases of Roy Joseph (supra) and Vijay (supra), the learned Single Judge framed two points and referred the said points to us.
9] We have heard Mr.Amit Desai, learned Senior Counsel on behalf of the complainant, Smt.V.R.Bhosale, learned APP for respondent No.1 State and Mr.A.M.Saraogi, learned counsel for the accused, at length.
10] Mr.Desai submitted that Section 142(a) of the Act provides that notwithstanding anything contained in the Cr.P.C., 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. As against this, Section 2(d) of Cr.P.C. defines "complaint" to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. It is submitted that under Section 2(d), a complaint can be made either orally or in writing by any person. The complaint under the Act has to be necessarily in writing and that too at the behest of payee or holder in due course of the cheque.
11] Mr.Desai further submitted that non-obstante clause of Section 142 of the Act overrides the provisions of Cr.P.C. to the following extent:-
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(i) under Section 2(d) of the Cr.P.C., a complaint could be either orally or in writing. Under the provisions of the Act, the complaint has to be necessarily in writing.
(ii) in so far as the complaints under the Cr.P.C. are concerned, criminal action can be set in motion by any person, even by a stranger. In so far as the complaint under the Act is concerned, a complaint can be filed only by the payee or holder in due course of the cheque.
(iii) whereas under the Cr.P.C., a complaint could be made at any time subject to the provisions of Chapter XXXVI, the complaint under the Act has to be lodged within one month from the date on which cause of action arises as per Section 142(b).
(iv) whereas under Article 511 of the First Schedule of the Cr.P.C., if the offence is punishable with imprisonment for less than 3 years or with fine only under any enactment (other than IPC) such offence can be tried by any Magistrate, under clause (c) of Section 142, no Court inferior to that of Metropolitan Magistrate or Judicial Magistrate F.C. can try any offence punishable under Section 138.
12] He further submitted that under the provisions of the Cr.P.C., wherever the Legislature intended that anything is required to be in writing coupled with signature below the said writing, the Legislature has specially provided therefor. For instance, he invited our attention to Sections 61, 70, 154, 162, 164(4), 200, 203, 204, 207 and 281 of the Cr.P.C. Section 61 of the cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 10 Cr.P.C. provides that every summons issued by the Court under the Code shall be in writing, in duplicate, signed by the Presiding Officer of the said Court.
Likewise one will find words "in writing" and "signed by" in Sections 70, 154, 162, 164(4), 200, 203, 204, 207, 281 of the Cr.P.C. Thus, wherever, the Legislature provided particular thing is required to be in writing, as also the signature below such writing is required, it has been specifically laid down in the provisions itself. He further submitted that the phrase "in writing" will not include the words "signed by" and it has to be separately provided for. He submitted that in the present case, the complainant is the Company which is a juristic person and is represented by a natural person. The words "signed by"
cannot be added either in Section 142 of the Act or Section 2(d) of the Cr.P.C.
Though the complaint in the instant case is not signed, the authorised representative of the complainant was examined on oath by the learned Magistrate and the verification statement is duly signed by the said Officer.
Alternatively, it was submitted that if it is held that the complaint has to be signed by the complainant it is mere irregularity and not an illegality warranting dismissal of the complaint on that ground and the irregularity is curable. He also submitted that, at any rate, no prejudice is caused to the accused for not signing the complaint. In support of this submission, he relied upon the several judgments to which reference will be made at appropriate place.
cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 11 13] On the other hand, Mr.A.M.Saraogi, learned counsel for the accused, submitted that under Section 142(b) of the Act, complaint has to be made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138. If the signature on the complaint is not made at the time of presenting the complaint, still it can be made provided it is within limitation as prescribed under Section 142(b). However, if the signature is not made at the time of presenting the complaint, subsequently, the said defect cannot be cured after the period of limitation is over. He invited our attention to the provisions of Section 190 of the Cr.P.C. which enables the Magistrate of the First Class to take cognizance of any offence upon receiving the complaint of facts which constitute such offence. Section 200 of the Cr.P.C. provides that the Magistrate taking cognizance of an offence of complaint shall examine upon oath the complainant and the witness present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and their witness and also by the Magistrate. In the light of this, he submitted that the complaint presented before the Magistrate can be treated complete in all respect only if the complaint is signed by the complainant and the verification is also signed by the complainant. In support of this submission he relied on the judgment of learned Single Judge of A.P. High Court in the case of P.Preetha, Proprietor of Siddi Vinayaka Steels and Hardware Vs.Panyam Cements and cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 12 Mineral Industries Limited and another, Vol.112 Company Cases 124.
14] He submitted that there is a purpose in insisting upon the signature on the complaint as also signed verification statement by the complainant, because, ultimately if the prosecution is found to be frivolous or otherwise mala fide, the Court may direct the registration of the case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The verification of the complaint is essential under Section 200 of the Cr.P.C. before taking cognizance of the offence not only with a view to finding out prima facie truth but also in order to identifying the person, who, in case the prosecution is found to be frivolous or mala fide, would be liable to answer the charge of perjury or to indemnify the accused. In other words, when the complainant gives statement before the Magistrate in support of his complaint, it is implicit that if certain statements are found to be false then the identity of perjurer is explicitly made clear. So also, if the complaint is found to be malicious and frivolous then the action for recovering the compensation can be taken against such complainant. He, therefore, submitted that as a measure of safeguard, the complaint has to be signed apart from the signed verification statement by the complainant. In support of this submission, Mr.Saraogi, learned Counsel for the accused, relied upon the judgment of the learned Single Judge of this Court in the case of Roy Joseph (supra).
cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 13 15] Mr.Desai invited our attention to the judgment of the learned Single Judge (R.K.Batta, J.) in the case of Finolex Industries Ltd. Vs.Pravin V. Sheth & ors., 2002(2)All M.R.644, in particular paragraph 5 thereof, which reads as under:-
"5. The general principle of Criminal Law is that any person can set the law in motion. However, section 142 of the Negotiable Instruments Act which deals with the Negotiable Instruments Act which deals with cognizance of the offences provides that notwithstanding anything contained in the Criminal Procedure Code, 1973, 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, holder in course of the cheque. Section 142 starts with non-obstante clause which means that cognizance can be taken by the Court on a complaint in writing. Therefore, the definition of the expression, "complaint" under Section 2(d) which provides for an allegation made orally would not be attracted in so far as cognizance of the complaint filed under Section 142 of the Negotiable Instruments Act is concerned. The requirement of complaint being in writing is that when the facts are found to be incorrect, action can be taken against the complainant and it is for this purpose that verification of the complainant is required to be made by the complainant. Therefore, reading of Section 142 of the Negotiable Instruments Act would go to show that for the purpose of taking cognizance of any offence punishable under Section 138 of the Negotiable Instruments Act, there has to be a complaint in writing by the payee or, as the case may be, holder in due course of the cheque. The verification of the complaint under Section 200 Code of Criminal Procedure is altogether different since said verification is required to be made in order to determine prima facie truthfulness of the complaint for cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 14 the purpose of issuing process. In my opinion, therefore a complaint under Section 142 of the Negotiable Instruments Act is required to be in writing and signed by the complainant. Any complaint which is not signed by the complainant is, therefore, incomplete and on an incomplete complaint, no cognizance can be taken under Section 142 of the Negotiable Instruments Act. Besides this, verification under Section 200 Criminal Procedure Code in this case was done on 6.5.1996 and admittedly on this date, the complaint was barred by limitation under Section 142(b) of the Negotiable Instruments Act which requires that such a complaint is required to be made within one month from the date on which the cause of action arises under clause (c) of the proviso under Section 138 of the said Act, On the date of verification, the complaint in question was barred by limitation and obviously the Magistrate could not have taken cognizance of the same."
In that case, the applicant before this Court had filed a complaint under Section 138 r/w.141 of the Act on March 6, 1996. The complaint was neither signed nor verified by the complainant, but the complaint was signed by M/s.Crawford Bayley, Advocates for the complainant. It further appears that no vakalatnama was given by the complainant in favour of the said Advocates for the purpose of filing the complaint. The verification of the complaint under Section 200 of Cr.P.C.
was recorded on May 6, 1996 and the process was issued against the respondents therein on September 17, 1996. The application for recalling process was filed by the respondents on March 23, 2001, which was resisted by cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:34 ::: 15 the complainant by filing reply on July 12, 2001. Relying upon the judgment in the case of M.A.Abdul Khuthoos Vs. M/s.Ganesh & Coy Oil Mills, 1999 Cri.J.J. 2432, the learned Magistrate allowed the application and recalled the process by holding that the complaint was not a complaint in the eyes of law. This judgment was delivered on March 4, 2002.
16] Mr.Desai invited our attention to the judgment of the learned Single Judge (R.K.Batta, J.) in the case of Vijay (Supra), paragraph 5 of the judgment reads as under:-
"5. It is, no doubt, true that section 142(a) of the Negotiable Instruments Act enjoins that no court shall take cognizance of any offence punishable under section 138 except upon a complaint in writing. Nevertheless, this is a case where, though the complaint was made in writing it was not signed and the Magistrate on the same day had examined the complainant under section 200 Criminal Procedure Code and obtained signatures of the complainant on the same day. On that date, the complainant was well within the period of limitation. In this view of the matter, I am of the opinion that non-signing of the complaint does go to the root of the matter whereas rulings upon which reliance has been placed relate to the bar on account of mandatory requirement of registration, prior consent of Advocate General and prior sanction for prosecution which go to the root of the matter. In the case under consideration, there is mere technical irregularity that the complaint was not signed, but the complainant was very much available in the Court and even his signature could have taken by the Court, but it appears that this fact was not noticed. The complainant was examined under section 200, Criminal Procedure Code on the same day and his signatures were taken on the verification."
cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 16 In that case, the respondent no.1 filed a complaint before the Magistrate under Section 138 of the Act r/w.Section 403, 406 and 420 Indian Penal Code, 1860 against the applicants. The complaint was presented on November 22, 1996 and on the same day, the complainant was examined under Section 200 of the Cr.P.C.. By order dated February 6, 1997, process was issued under Section 138 of the Act. An application for dismissal of the complaint, as the same was not signed by the complainant and as such was not maintainable, was made on April 1, 1997. The application was disposed of by order dated January 14, 1999 holding that the learned predecessor had already taken cognizance of the case and the process was issued as such the accused could not raise objection. This judgment was rendered on September 16, 2002.
17] Mr.Desai further invited our attention to the judgment of the learned Single Court of the Karnataka High Court in the case of K.M.Maregowda Vs. M/s.Seven Hills Ex-Import, 2004 Cri.L.J.4119. After considering the provisions of the Act as also the judgment of the Apex Court and other High Courts, the learned Judge observed in paragraph 9 as under:-
"9. It is trite that while construing a mandatory provision prescribing eligibility criteria, nothing could be added or deleted. So, the words "and signed" or "under the signature" cannot be added after the words "in writing" appearing in Section 142(a) of the Act referred to already. If the Legislature intended cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 17 that the complaint should also be signed by the complainant, it would have added the words referred to above but, deliberately, not done so for the reason that, in such an event, juristic person or body corporate etc., could not file complaints, thereby negating the remedy provided under Section 138 of the Act. So, the argument, that the complaint should be under the signature of the complainant cannot be upheld."
In that case, the respondent before the High Court, presented a complaint before the Court through its power of attorney holder for offence punishable under under Section 138 of the Act under the signature of power of attorney holder.
After taking cognizance, the power of attorney holder was examined upon oath by the learned Magistrate and thereafter the process was issued. On behalf of the petitioner accused it was submitted that in view of Section 142 of the Act, the complaint filed by the complainant through the power of attorney that too, without the signature of the complainant to it, was not at all proper and recording of sworn statement of the general power of attorney holder cannot be taken as examining the complainant as envisaged under Section 200 of the Cr.P.C., subsequently, the proceedings required to be quashed.
18] Mr.Desai also strongly relied upon the judgment of the learned Single Judge of the Punjab and Haryana High Court in the case of M.S.Shoes East Ltd. and another Vs.Modella Knitwear Ltd. And another, Volume 103 Company Cases 816. In that case, the order dated November 11, 1997 passed cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 18 by the Court of Judicial magistrate, Chandigarh was challenged in a Criminal Revision before the High Court. By that order, the learned Magistrate disposed of two applications filed by the complainant- Modella Knitwear Ltd. and the other by M.S.Shoes East Ltd. Modella Knitwear Ltd. submitted an application before the learned Magistrate in complaint under Section 138 of the Act with a request for granting it permission to put signatures on the complaint or in the alternative to treat the documents of the complaint duly signed attached with the application as part of the original complaint. M.S.Shoes East Ltd. filed reply praying for dismissal of the complaint on the ground that the complaint was not signed by the payee or the holder in due course of the cheque and as such requirement of Section 142(a) of the Act was not complied with and the complaint under Section 138 of the Act is, therefore, liable to be dismissed. The unsigned complaint is no complaint in the eyes of the law and thus the Magistrate could not take cognizance nor could summon the accused. Moreover, the defence of the petitioner was prejudiced because of the absence of signature on the complaint. The learned Magistrate passed following order :-
Present : Complainant in person.
Complaint presented today. The same be made over to the court of Miss Harpreet Kaur, learned Judicial Magistrate, First Class, Chandigarh for disposal according to law. The complainant is directed to appear before the court on April 17, 1996.
Announced :16-4-96. (Sd.) Chief Judicial Magistrate Chandigarh cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 19 19] It was observed that the complaint was not signed inadvertently by the complainant though the complaint in writing was presented in the Court by him personally and the learned Magistrate took cognizance on the basis of written complaint. In paragraph 21 of the judgment, passage from the judgment of the Apex Court in the case of Chitranjan Das Vs. State of West Bengal, AIR 1963 SC 1696 to the following effect was reproduced:-
"Requirements of procedure are generally intended to subserve the ends of justice, and so, undue emphasis on mere technicalities in respect of matters which are not of vital or significant importance in a criminal trial, may some times frustrate the ends of justice. Where the provisions prescribed by the law of procedure are intended to be mandatory the Legislature indicates its intention in that behalf clearly and contravention of such mandatory provisions may introduce a serious infirmity in the proceedings themselves; but where the provisions made by the law of procedure are not of vital importance but are, nevertheless, intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. This provision is made clear by sections 535 and 537 of the Criminal Procedure Code."
After considering the authoritative pronouncement of the Apex Court, where the non-compliance with the mandatory provisions are not of vital importance but are nevertheless intended to be observed, their breach may not necessarily vitiate the trial unless it is shown that the contravention in question has caused prejudice to the accused. It was further observed that the accused was cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 20 contesting the case from the time of his appearance. The notice of accusation has been served upon the accused and the learned defence counsel had not been able to show as to what prejudice has been caused to the accused due to omission of the signature of the complainant. If no prejudice has been caused to the right of accused due to this omission then the mere omission of the signature cannot be a ground to dismiss the complaint. After considering the provisions of Section 142 of the Act, the learned Judge observed thus:-
" A reading of the above section would show that no court would take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, by the holder of the cheque in due course. This section starts with a specific provision that the provisions of the Negotiable Instruments Act shall apply notwithstanding anything contained in the Code of Criminal Procedure with regard to those provisions given in sub-sections (a), (b) and (c) of this section, i.e., section 142. Thus, in order to constitute a valid complaint for the purpose of section 138 of the Act, there should be a complaint and that complaint must be in writing. A close scrutiny of the provisions of section 142 of the Act is not obligatory on the part of the complainant to establish that his complaint was signed by him or it. The word "complaint" has not been defined under the Act, but luckily it has been defined under the Code of Criminal Procedure and according to section 2(d) of the Code "complaint"
means any allegation made orally or in writing to a magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The complaint under section 138 of the Act is supposed to be tried as a warrant case instituted otherwise than on a police report. The cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 21 scheme of the Code shows that wherever the Legislature wanted that any action on the part of a litigant should be signed, it has so stated in the relevant provisions. However, where the Code wants that a written complaint would be enough for the purpose of taking cognizance, or for the purpose of summoning the accused the things can go in that fashion without any difficulty. I would like to make a mention of section 190 of the Code of Criminal Procedure. As per this section the magistrate of the first class or second class can take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not talk that the complaint should be signed by the complainant. I have already incorporated the definition of "complaint" as defined under the Code. As per section 200 of the Code once a complaint is instituted before a magistrate, he is supposed to examine upon oath the complainant and the witnesses. Their statements are supposed to be reduced into writing and those statements are further supposed to be signed by the complainant and the witnesses, meaning thereby that the complaint can be instituted in writing. It need not be signed by the complainant but the statement which shall be made by the complainant or on his or its behalf shall be reduced into writing and such statement is supposed to be signed by the complainant. Besides that, the statements of the witnesses examined by the complainant are also supposed to be signed, meaning thereby wherever the Code wanted that a particular act should be signed, it has to be signed. If the Code wants a written document and if a complaint is filed in writing before a Magistrate, who has taken cognizance over the matter, such a complaint is not bad in the eyes of law. To proceed further, I would also like to refer to the provisions of section 154 of the Code of Criminal Procedure, which again states that every information relating to the commission of a cognizable offence, if given orally to the officer in charge of a police station, shall be cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 22 reduced into writing. It shall be read over to the informant and it shall also be signed by the person, who gives the information. Similarly, a reading of section 164 of the Code indicates that if the magistrate is to record a confession, as per sub-
section (4) of this section it is supposed to be signed by the person making the confession."
20] Mr.Desai also invited our attention to the judgment of the Division Bench of Andhra Pradesh High Court in the case of S.P.Sampathy and etc. Vs. Smt.Manju Gupta and another etc, 2002 Cri.L.J. 2621, where the complaint was filed under Section 138 of the of the Act. It was held that from perusal of Section 5 of the Cr.P.C, it is clear that the same lays down the procedure for trial Court of all criminal cases except under any special or local law for the time being in force or any special form of procedure prescribed by any other law for the time being in force. Therefore, for the purpose of taking cognizance, the provisions of Cr.P.C.
have been excluded by Section 142 of the Act and any reference or reliance placed on Section 198 or Chapter XX of the Cr.P.C. is misplaced. The trial Court gets jurisdiction to entertain a complaint only on satisfaction of two conditions (1) that the complaint should be in writing and (2) it should be made by the payee or holder in due course of the cheque. When the law demands that the complaint should be in writing by the payee that means the complaint should be made and signed by the payee or the holder in due course. In that case the complaint was made in the name of the complainant but signed by his power of attorney cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 23 holder. It was held that the complaint cannot be signed by the power of attorney holder on behalf of the payee under Section 138 of the Act. The complaint can only be filed in writing by the payee or holder in due course of the cheque.
21] Mr.Desai invited our attention to the judgment of the Apex Court in the case of Pankajbhai Nagjibhai Patel Vs. State of Gujarat and another, (2001) 2 SCC 595. After considering Section 142 of the Act, it was observed in paragraph 6 as under:-
"6. It is clear that the aforesaid non obstante expression is intended to operate only in respect of three aspects, and nothing more. The first is this: Under the Code a Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon receiving information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of the NI Act says that insofar as the offence under Section 138 is concerned no court shall take cognizance except upon a complaint made by the payee or the holder in due curse of the cheque."
He further submitted that for the purpose of computing the period of limitation what is relevant is the date when the complaint is filed or criminal proceedings are initiated and not the date when the Court/Magistrate takes cognizance or issues process. In support of this submission, he relied upon a judgment of the Apex Court in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty, (2007) 7 SCC 394. In the alternative, he submitted that non signing of the complaint is cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 24 mere irregularity and not illegality. Not signing of the complaint does not affect the proceedings and the irregularity is curable. He submitted that in the instant case, the learned Magistrate recorded that on June 3, 1998 the complaint was presented in person. Originally, Mr.Rego, Senior Manager (Accounts) had presented the complaint on June 3, 1998. The verification statement was signed by said Rego before the learned Magistrate on July 30, 1998. His name was substituted by inserting the name of Mr.T.R.Suryanarayanan, Vice-President -
Business Accounts Polyester and the cause title of the complaint was signed by Mr.Suryanarayanan. He did not dispute that the complaint was not signed by the said Rego when it was presented before the learned Magistre. However, the verification statement was signed by the said Rego on July 30, 1998 before the learned Magistrate.
22] Before we consider the rival submissions advanced on behalf of the parties, it would be advantageous to appreciate the scheme of the Act. The Act was amended by the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for penalties in case of dishonour of cheques due to insufficiency of funds in the account of the drawer of the cheque. These provisions were incorporated with a view to encouraging the culture of use of cheques and enhancing the credibility of the instrument. The provisions prior to Amendment cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 25 Act 55 of 2002 in the Act, namely, sections 138 to 142 in Chapter XVII were found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act was proved to be inadequate, the procedure prescribed for the Courts to deal with such matters was found to be cumbersome. The Courts were unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act.
23] A large number of cases were reported to be pending under section 138 of the Act in various courts in the country. Keeping in view the large number of complaints under the said Act pending in various Courts, a Working Group was constituted to review section 138 of the Act, and make recommendations as to what changes were needed to effectively achieve the purpose of that section. The recommendations of the Working Group along with other representations from various institutions and organisations were examined by the Government in consultation with the Reserve Bank of India and other legal experts, and a Bill, namely, the Negotiable Instruments (Amendment) Bill, 2001 was introduced in the Lok Sabha on July 24, 2001. The Bill was referred to Standing Committee on Finance which made certain recommendations in its report submitted to Lok Sabha in November, 2001. Keeping in view of the recommendations of the Standing Committee on Finance and other representations, the provisions of Section 138, 141, 142 were amended. Section cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 26 143 to 147 were inserted by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 w.e.f. February 6, 2003. The said amendments in the Act are aimed at early disposal of cases relating to dishonour of cheques, enhancing punishment for offenders, introducing electronic image of a truncated cheque and a cheque in the electronic form as well as exempting an official nominee director from prosecution under the Act. However no amendment to the existing Section 142(a) of the Act was made.
24] It is basic principle of construction of statute that the same should be read as a whole, then chapter by chapter, section by section and word by word. Recourse to construction or interpretation of statute is necessary when there is ambiguity, obscurity, or inconsistency therein and not otherwise. An effort must be made to give effect to all parts of the statute and unless absolutely necessary, no part thereof shall be rendered surplusage or redundant. True meaning of a provision of law has to be determined on the basis of what it provides by its clear language, with due regard to the scheme of law. Scope of legislation on the intention of the legislature cannot be enlarged when the language of the provision is plain and unambiguous. In other words, statutory enactments must ordinarily be construed according to their plain meaning and no words shall be added, altered or modified unless it is plainly necessary to do so to prevent a provision from being unintelligible, absurd, unreasonable, cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 27 unworkable or totally irreconcilable with the rest of the statute, as laid down by the Apex Court in the case of Bhavnagar University Vs.Palitana Sugar Mill (P) Ltd., (2003)2 SCC 111.
25] Section 142 of the Act reads as under :
"142.Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973,-
(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 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.]"
The controversy in the present case concentrates on construction of Section 142(a) of the Act and in particular phrase "in writing" employed therein. It provides that notwithstanding anything contained in the Cr.P.C., no Court shall take cognizance of any offence punishable under Section 138 of the Act except upon a complaint in writing made by the payee or as the case may be the holder in due course of the cheque. The moot question in the instant case is what is meant by complaint in writing, whether the complaint should be in writing cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 28 simplicitor or complaint being in writing requires signature below such writing.
26] In the light of the judgment of the Apex Court in the case of Bhavnagar (supra), let us analyse the provisions of the Act. Section 4 of the Act defines Promissory Note to mean an instrument in writing (not being a bank-
note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to the order of, a certain person, or to the bearer of the instrument. Section 5 of the Act defines Bill of exchange to mean an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay a certain sum of money only to, or to the order of, a certain person or to the bearer of the instrument. Section 6 of the Act defines a cheque. Explaination I(a) thereof reads thus:-
"a cheque in the electronic form" means a cheque which contains the exact mirror image of a paper cheque, and is generated, written and signed in a secure system ensuring the minimum safety standards with the use of digital signature (with or without biometrics signature) and asymmetric crypto system.
27] Section 2(d) of the Cr.P.C. defines the complaint to mean any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report. The comparison of Section 2(d) of the Cr.P.C. and Section 142 of the Act shows that ;
1) whereas under Section 2(d) of the Cr.P.C. complaint can be made either orally or in writing, under the provisions of the cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 29 Act the complaint has to be necessarily in writing.
2) whereas the complaint under Cr.P.C. can be made by any person, in so far as the complaint under the Act is concerned, it can be filed only by the payee or holder in due course of the cheque.
28] As observed by the Apex Court in the Case of Pankajbhai Nagjibhai Patel (Supra), it is clear that the non-obstante expressed in Section 142 is intended to operate only in respect of three aspects that are as under:-
1) under the Cr.P.C. a Magistrate can take cognizance of offence either upon receiving a complaint or upon the police report or upon receiving information from any person or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Cr.P.C. Under Section 142 of the Act in so far as the offence under Section 138 is concerned, no Court shall take cognizance except upon a complaint made by payee or the holder in due course of the cheque.
2) under the Cr.P.C. complaint can be made at anytime subject to the provisions of Chapter XXXVI. As far as the offence under Section 138 of the Act is concerned, such complaint has to be made within one month from the date on which cause of action arises under Clause (c) of the proviso to Section 138.
3) Under Article 511 of the first Schedule of the Cr.P.C. if the offence is punishable with imprisonment for less than three cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 30 years or with fine only under any enactment (other than IPC) such offence can be tried by any Magistrate. Normally, Section 138 of the Act which is punishable with maximum imprisonment of two years would have fallen within the scope of said Article, But Section 142 of the Act says that for the offence under Section 138, no court inferior to that of Metropolitan Magistrate or Judicial Magistrate of the First Class shall try the said offence. Thus, non-obstante clause in Section 142 of the Act is not intended to expand the powers of the Magistrate of the First Class beyond what is fixed in Chapter III of the Cr.P.C.
29] Under the provisions of the Cr.P.C. wherever the Legislature intended that something is required in writing coupled with the signature below the said writing, the Legislature has specifically provided therefor. Mr.Desai invited our attention to Sections 61, 70, 154, 162, 164(4), 200, 203, 204, 207 and 281 of the Cr.P.C. Section 200 of the Cr.P.C. to the extent it is relevant to the present controversy 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:"
cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 31 Thus, when the Magistrate takes cognizance of offence on complaint, he has to examine upon oath the complainant and the witnesses present, if any, and substance of such examination has to be reduced in writing and has to be signed by the complainant and the witnesses and also by the Magistrate.
30] The submission of Mr.Saraogi, learned counsel that as a measure of safeguard the complaint has to be signed by the complainant, in our opinion, does not consider the importance of signed verification statement of the complainant. If ultimately the prosecution is found to be frivolous or otherwise mala fide, the Court can direct the registration of the case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The verification of the complaint is essential under Section 200 of the Cr.P.C. before taking cognizance of the offence not only with a view to finding out prima facie truth but also identifying the person, who, in case the prosecution is found to be frivolous or mala fide, would be answerable to the charge of perjury or indemnify the accused. When the complainant gives statement before the Magistrate in support of his complaint, it is implicit that if certain statements are found to be false, then the identify of perjurer is explicitly made clear. So also, if the complaint is found to be malicious and frivolous, then the action for recovering the compensation can be taken against such complainant The apprehension expressed by Mr.Saraogi, cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 32 in our judgment, is wholly unfounded. Even, as per Section 190 of Cr.P.C., the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not lay down that the complaint has to be signed by the complainant. Combined reading of Sections 190 and 200 of the Cr.P.C. and Section 142(a) of the Act, leads to the conclusion that under the Act the complaint can be instituted in writing, however, it need not be signed by the complainant. But the Magistrate taking cognizance shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and such statement is required to be signed by the complainant.
31] We are further of the opinion that that the language employed in Section 142(a) of the Act is plain, unambiguous and clear. We consequently cannot add the words "and signed by" and delete comma and the words "made by" after the words "in writing" occurring in Section 142(a) of the Act. We are also unable to agree that the phrase "in writing" will also include the words "signed by" as we are of the opinion that wherever the Legislature intended that the something is required in writing coupled with signature below such writing, the Legislature has specially provided therefor both under the Act. It is required to be noted that as per Section 2(d) of the Cr.P.C., a complaint can be either oral or in writing. If the contention of Mr.Saraogi is to be accepted, it would mean that cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 33 wherever complaint is made in writing as per Section 2(d) of the Cr.P.C., such complaint would not be maintainable and it will have to be rejected once it is found that the same is not signed. It is, therefore, not possible to give such a meaning by adding the word "signature" when the Legislature only contemplated the complaint in writing and not beyond that.
32] In the present case, as noted earlier the complaint was presented in person on June 3, 1998. The complaint was verified on July 30, 1998 and the verification statement was duly signed by the authorised Officer of the complainant. We fail to appreciate as to how any prejudice is caused to the accused for non signing the complaint. The statement made on oath and signed by the complaint safeguards the interest of the accused. Considering the aforesaid aspects, we are clearly of the opinion that the requirement of Section 142(a) of the Act is that the complaint has necessarily to be in writing and the complaint can be presented by payee or holder in due course of the cheque. It need not be signed by the complainant. If the Legislature intended that the complaint under the Act, apart from being in writing, is also required to be signed by the complainant, the Legislature would have used different language.
33] In the light of the view taken by us, we respectfully agree with the law laid down by the learned Single Judge of Panjab and Haryana High Court in the case of M.S.Shoes East Ltd. (supra) as also judgment of the learned Single cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 34 Judge of the Karnataka High Court in the case of K.M.Maregowda (Supra). In so far as the judgment of the learned Single Judge of this Court in the case of Roy Joseph (Supra) is concerned, in paragraph 10 of the Judgment, the learned Single Judge reproduced the legal requirement of a valid complaint for the purpose of the Act. After quoting observations of the Apex Court in the case of Sabitha Ramamurthy and another Vs. R.B.S.Channabasavaradhya, 2006 AIR SCW 4582, the learned Judge observed as under :-
" The statutory provision requires, therefore, that the complaint must be signed by the complainant and that it shall be verified by the complainant, is, therefore, incomplete and on the basis of such incomplete complaint, no cognizance can be taken under Section 142 of the Negotiable Instruments Act."
With great respect, we are unable to subscribe to the said view. In our opinion, the learned Single Judge, with utmost respect, has mixed up the requirement of complaint in writing under Section 142(a) of the Act with that of verification at the time of taking cognizance under Section 200 of the Cr.P.C. that requires signature of the complainant. We are also unable to subscribe to the view expressed by the learned Single Judge of this Court in the case of Finolex Industries(Supra), wherein it was held that a complaint under Section 142 of the Act is required to be in writing and signed by the complainant. That judgment was rendered on March 4, 2002. The verification of the complaint under Section cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 35 200 of the Cr.P.C. is necessary and the purpose of such verification before taking cognizance of the offence is essential not only with a view to finding out prima facie truth, but also, for safeguarding the interest of the accused.
34] As far as the judgment of the learned Single Judge in the case of Vijay (supra) is concerned, the learned Single Judge in paragraph 5 observed that:-
"5. It is, no doubt, true that section 142(a) of the Negotiable Instruments Act enjoins that no court shall take cognizance of any offence punishable under section 138 except upon a complaint in writing. Nevertheless, this is a case where, though the complaint was made in writing it was not signed and the Magistrate on the same day had examined the complainant under section 200 Criminal Procedure Code and obtained signatures of the complainant on the same day. On that date, the complainant was well within the period of limitation. In this view of the matter, I am of the opinion that non-signing of the complaint does go to the root of the matter whereas rulings upon which reliance has been placed relate to the bar on account of mandatory requirement of registration, prior consent of Advocate General and prior sanction for prosecution which go to the root of the matter. In the case under consideration, there is mere technical irregularity that the complaint was not signed, but the complainant was very much available in the Court and even his signature could have taken by the Court, but it appears that this fact was not noticed. The complainant was examined under section 200, Criminal Procedure Code on the same day and his signatures were taken on the verification."
The question that is posed before us was not squarely raised in that judgment.
cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 36 Though the complaint in writing but not signed by the complainant was presented on November 22, 1996, the learned Magistrate examined the complainant on the same day under Section 200 of the Cr.P.C. and obtained signature of the complainant on the same date i.e.November 22, 1996. On that date, the complaint was well within the period of limitation. In that view of the matter, the learned Judge was of the opinion that non signing of the complaint did not go to the root of the matter. We may note in that judgment in the case of Vijay (supra) was rendered on September 16, 2002. We also do not agree with the Division Bench judgment of Andhra Pradesh High Court in the case of S.P.Sampathy (supra) as also the judgment of the learned Single Judge of A.P. High Court in the case of P.Preetha (supra).
35] The learned Single Judge has formulated two points. We are taking the view that the complaint under Section 142(a) of the Act requires to be in writing and does not further require to be signed by the complainant, as at the time of taking cognizance, the learned Magistrate examines the complainant on oath and the verification statement is signed by the complainant. In our opinion, since the law does not require signature of the complainant on the complaint under Section 138 of the Act, we do not consider it appropriate to answer point no.2 as our answer to point No.1 is in affirmative. Hence, our answer to point No.1 is that even if a complaint under Section 142(a) of the Act is not signed by cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 37 the complainant in spite of verification of complainant, it will not be "non-entia"
and the prosecution will lie on such complaint. Point No.1 is answered accordingly. In the light of our answer to point No.1 let the papers be placed before the learned Single Judge who seized of these cases.
36] After dictating the judgment in the open Court and before signing the same, learned counsel for the accused orally prayed on March 18, 2010 for permission to cite few judgments. We have heard Mr.Saraogi, learned Counsel for accused and Mr.Amit Desai, learned Senior Counsel for the complainant.
37] Mr.Saraogi, learned counsel, invited out attention to the following judgment of the Apex Court:-
1. Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd., (2008)4 SCC 755.
2. O.S.Singh and another Vs. Union of India and another, (1996)7 SCC 37.
In the case of Gujarat Urja Vikas Nigam (supra) the Apex Court has observed in paragraph 53 as under:-
"53.In the chapter on "Exceptional Construction" in his book on Interpretation of Statutes, Maxwell writes:
"WHERE the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the sentence. This may be done by departing cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 38 from the rules of grammar, by giving an unusual meaning to particular words, by altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications thus made are mere corrections of careless language and really give the true meaning."
38] As we have already indicated that the language employed in Section 142(a) of the Act is plain, unambiguous and clear, we cannot add anything in that Section as observed by the Apex Court in the case of Bhavnagar University (supra). Reliance placed by Mr.Saraogi on the judgments of the Apex Court in the cases of (1) Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd., (2008)4 SCC 755 and (2) O.S.Singh and another Vs. Union of India and another, (1996)7 SCC 37, is, therefore, misplaced. Accordingly, we answer point No.1 in the affirmative. It is held that the complaint under Section 138 of the Act is maintainable. When such complaint is subsequently verified by the complainant and the process is issued by the Magistrate after verification, it cannot be said that the said complaint is "non-entia" and the prosecution of such complaint, in our view, therefore, is maintainable. Since the answer to point No.1 is affirmative it is not necessary to decide point no.2.
39] Before parting, we have noted one thing in the matter. The accused had moved applications earlier in both the complaints on May 15, 2003 for recalling cr.appeal.287-09.sxw ::: Downloaded on - 09/06/2013 15:43:35 ::: 39 the process on the ground that the complaints were not signed by the authorised representative of the complainant who had presented the complaints. The learned Magistrate (Mr.S.H.Jagiasi) rejected the applications by order dated August 28, 2003. Subsequently, the accused filed applications under Section 136 of the Indian Evidence Act, 1872 on August 11, 2008 inter alia raising self-
same objections. The learned Magistrate (Mr.R.K.Bhise) allowed the applications by impugned order dated November 26, 2008.
40] In view of our answer to point no.1, let the appeals be placed before the learned single Judge for deciding the appeals on merits. We make it clear that we have not examined any other point.
[R.G. KETKAR, J.] [P.B. MAJMUDAR, J.]
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