Rajasthan High Court - Jodhpur
Manmohan Singh vs M/S Ankur Enterprises on 17 May, 2011
Equivalent citations: 2011 ACD 1075 (RAJ), (2011) 105 ALLINDCAS 358 (RAJ), (2011) 4 RECCRIR 650, (2011) 4 CIVILCOURTC 94, (2011) 3 RAJ LW 2237, (2011) 2 NIJ 116, (2012) 1 CIVLJ 145, (2011) 3 WLC (RAJ) 647, (2011) 4 RECCIVR 746, (2011) 4 CRIMES 252, (2011) 2 CRILR(RAJ) 911, (2012) 2 BANKCAS 384, (2011) 4 CRIMES 151, (2012) 1 CURCC 498, (2011) 4 CURCC 106, 2011 (74) ACC (SOC) 85 (RAJ)
Author: Vineet Kothari
Bench: Vineet Kothari
SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises &
orther connected matters
Order dt: 17/5/2011
1/10
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
ORDER
Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 367/2011 Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 368/2011 Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 369/2011 Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 370/2011 Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 371/2011 Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 372/2011 Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 373/2011 Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 374/2011 Manmohan Singh vs. M/s Ankur Enterprises S.B.CR.MISC. PETITION NO. 375/2011 DATE OF ORDER : 17/5/2011 HON'BLE DR.JUSTICE VINEET KOTHARI REPORTABLE Mr.Manoj Bhandari, for the petitioner.
Mr.Akhilesh Rajpurohit, for the respondent. Mr.A.K.Nikub, P.P.
1. The present misc. petitions under Section 482 Cr.P.C.are directed against the order dated 14/1/2011 passed by the revisional SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 2/10 court dismissing the revision petitions of the accused petitioner against the order passed by the learned trial court by which the application under Section 203 Cr.P.C. dated 28/5/2010 was rejected by the learned trial court on 27/9/2010.
2. Learned counsel for the petitioner, Mr. Manoj Bhandari relying upon the decision of a Coordinate bench of this Court dated 22/7/2009 in the case of Prakash Chand vs. State of Raj. & anr.-
2009 (3) WLC (Raj.) 766 submitted that the learned trial court could not have taken cognizance on the complaint filed by the respondent complainant M/s Ankur Enterprises under Section 138 of Negotiable Instrument Act merely on the basis of affidavit filed along with the complaint without examining the complainant and recording his statements on oath under Section 200 Cr.P.C. & learned court below has erred in rejecting the revision petition filed by the accused petitioner. The relevant portion of the judgment of coordinate bench of this Court in the case of Prakash Chand vs. State of Raj. & anr.
(supra) is reproduced below for ready reference:
"15. Further, it is to be seen as to whether the provisions of Section 142 and 145 of the Negotiable Instruments Act override the provisions of Section 200 Cr.P.C.. It may be noted that Section 142 of the Negotiable Instruments Act does not exclude the examination of the complainant and witnesses on oath under Section 200 Cr.P.C. Section 145 of the Negotiable Instruments Act refers to evidence of the SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 3/10 complainant on affidavit which does not relate to the stage before issuance of process under Section 204 Cr.P.C. A specific reference was required to be made in these Sections for dispensing with the examination of the complainant and his witnesses on oath by the Magistrate. In absence of it, it cannot be said that the provisions of the Negotiable Instruments Act would override the provisions of Section 200 Cr.P.C.
17. For the reasons given hereinabove, it is concluded that Section 142 and 145 of the Negotiable Instruments Act do not override the provisions of Section 200 of Cr.P.C. and it is mandatory for the Magistrate to examine the complainant, who has filed the complaint under Section 138 of the Negotiable Instruments Act. The Magistrate is obliged and duty bound to examine the complainant and his witnesses upon oath before issuance of process under Section 204 Cr.P.C. Such examination would not take much time if the statement of the complainant is recorded on the same day on which the complaint is filed or on the following day when the matter is fixed. In any case, the procedure laid down by law has to be followed and the same cannot be deviated on the ground of delay in disposing a complaint under the Negotiable Instruments Act.
Therefore, I am of the considered opinion that the procedure of examining a complainant and all his witnesses present, if any, on a complaint filed under Section 190 Cr.P.C. is the basic procedure given under the Code of Criminal Procedure. Therefore, the complainant should have been examined before proceeding to take cognizance even in the present case.
18. Consequently, this criminal miscellaneous SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 4/10 petition is allowed and the impugned orders dated 18.07.2007 and 13.05.2009 are hereby quashed and set aside."
3. On the other hand, learned counsel for the complainant, Mr. Akhilesh Rajpurohit relied upon the later view of another coordinate bench of this Court in the case of Rakesh Sharma vs. State of Raj.
& anr. - 2010 (3) WLC 191 decided on 2/4/2010 in which distinguishing the aforesaid view in the case of Prakash Chand (supra) & holding it to be per incuriam, another learned Single Judge of this Court relying upon the Supreme Court decision in the case of M/s Mandvi Co-op. Bank Ltd. vs. Nimesh B. Thakore - 2010 (1) DCR 177 and Radhey Shyam Garg vs. Naresh Kumar Gupta -
2009 Cr.L.R.(SC) 546 & held that Section 145 of the Negotiable Instruments Act is a non obstante provision and there is no distinction made for pre-summoning stage and post summoning stage and, therefore, the view taken by the learned Single Judge in Prakash Chand's case (supra) holding that Section 200 Cr.P.C. would override Section 145 (1) of Negotiable Instruments Act is incorrect and has been rightly distinguished in the later view in the case of Rakesh Sharma (supra).
4. The later view of the coordinate bench of this Court in the case of Rakesh Sharma vs. State of Raj. & anr. (supra) is quoted below for ready reference:-
SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 5/10 "18. Perusal of the aforesaid judgment reveals that to the extent procedure is provided under Section 142 of the N.I. Act, the provisions contained in the Code of Criminal Procedure cannot have overriding effect. The outcome of the aforesaid is that provisions of Section 142 of the N.I. Act will have overriding effect on the procedure contrary provided under the Code of Criminal Procedure though particular section of the Code of Criminal Procedure has not been specifically mentioned under Section 142 of the N.I. Act. The same is the position of Section 145 of the N.I. Act wherein specific Section of the Code of Criminal Procedure has not been mentioned but the specific procedure exists in regard to evidence by the complainant at pre and post cognizance stage. The outcome of the aforesaid discussion makes the judgment of this Court in case of Prakash Chand (supra) per-in-curium to the extent it holds that Section 145 of the N.I. Act does not provide evidence on affidavit by the complainant at pre-
cognizance stage...........
19. In reference to the aforesaid para, judgment in case of Panakjbhai Nagjibhai Patel (supra) and also judgment in case of Radhey Shyam Garg (supra) as decided by the Delhi High Court and upheld by the Hon'ble Apex Court are required to be seen. Perusal of the aforesaid two judgments makes it clear that judgment in case of Prakash Chand (supra) cannot hold field. For clarity, it is necessary to mention that Section 145 of the N.I. Act is enabling provision for the complainant as the word 'may' has been used for his evidence on affidavit. It is not mandatory that SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 6/10 complainant has to give his evidence on affidavit only. However, when the complainant chooses to give his evidence on affidavit during the course of enquiry, trial and or other proceeding, it cannot be said that such evidence on affidavit can be allowed during the course of trial alone. It is a settled law that no word of statutory provision can be left out for the purpose of giving interpretation. The word 'enquiry' used under Section 145 gets no meaning if evidence by the complainant on affidavit is not allowed before issuance of process as per Section 204 of Cr.P.C. If the intention of the legislature would have been that evidence by the complainant on affidavit can be given during the course of trial alone, then there was no reason to insert words 'enquiry' and 'other proceeding' in Section 145 of N.I. Act. Thus, in view of the aforesaid also, the argument of learned counsel for petitioner cannot be accepted or if we accept the argument, then Section 142 of the N.I. Act cannot be accepted in the manner interpreted by the Hon'ble Apex Court in case of Panakjbhai Nagjibhai Patel (supra). The outcome of the discussion made above is that Section 145 of the N.I. Act is having overriding effect on the provisions of the Code of Criminal Procedure providing contrary procedure for the complainant's evidence at the stage of enquiry, trial and other proceeding. Sections 4 & 5 of the Cr.P.C. cannot be given narrow interpretation otherwise the very purpose and object of bringing amendment under Sections 142 to 147 of the N.I. Act will frustrate as otherwise elaborately discussed by the Hon'ble Apex Court in case of M/s. Mandvi Co-op Bank Ltd. (supra).
SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 7/10
20. In view of discussion made in reference of the provisions of the Negotiable Instruments Act as well as Code of Criminal Procedure, I am of the opinion that Sections 142 to 147 of the Negotiable Instruments Act have to be given effect and any provision contrary in the Code of Criminal Procedure cannot have overriding effect. The effect of the provisions of Sections 142 to 146 of the N.I. Act have been dealt with by Delhi High Court as well as Hon'ble Apex Court in the cases of Radhey Shyam Garg and M/s. Mandvi Co- op Bank Ltd. (Supra) wherein it has also been held that Sections 142 to 146 will attract to the trial in a complaint maintained pursuant to Section 190 of the Code of Criminal Procedure and it departs from the procedure contrary given in the Code of Criminal Procedure.
21. In view of discussion made above, my composite answer to the two questions framed above is that evidence of complainant may be given on affidavit not only during the course of trial but even pre- summoning stage i.e., before issue of process pursuant to Section 204 of the Cr.P.C. In view of the aforesaid, provisions of Section 145 of the N.I. Act would be having overriding effect to the provisions contrary provided under the Code of Criminal Procedure. The issue having been answered in the aforesaid manner, thus there remains no substance in the criminal miscellaneous petition challenging order dated 1.2.2010 and accordingly same is dismissed."
5. The Hon'ble Supreme Court in the case of M/s Mandvi Co-op.
SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 8/10 Bank Ltd. vs. Nimesh B. Thakore - 2010 (1) DCR 177 held in para 20 as under:-
"Once it is realized that sections 143 to 147 were designed especially to lay down a much simplified procedure for the trial of dishonoured cheque cases with the sole object that the trial of those cases should follow a course even swifter than a summary trial and once it is seen that even the special procedure failed to effectively and expeditiously handle the vast multitude of cases coming to the court, the claim of the accused that on being summoned under section 145(2), the complainant or any of this witnesses whose evidence is given on affidavit must be made to depose in examination-in-chief all over again plainly appears to be a demand for meaningless duplication, apparently aimed at delaying the trial."
6. Having heard the learned counsels and upon perusal of the legal position cited above, this Court respectfully disagree with the earlier view of coordinate bench of this Court in the case of Prakash Chand vs. State of Raj. (supra) and tends to agree with the later view of this Court in the case of Rakesh Sharma vs. State of Raj. (supra), which has been rendered following the Supreme Court decision in M/s Mandvi Co-op. Bank Ltd. vs. Nimesh B. Thakore (supra) and is inclined to hold that Section 145 (1) of Negotiable Instruments Act, which is a non obstante provision cannot be dissected into two different stages, namely; pre summoning stage of trial and post SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 9/10 summoning stage of trial. The clear and unambiguous meaning of the non obstante clause contained in Section 145 (1) of the Act is that wherever the repugnancy or conflict arises while applying the provisions of Cr.P.C., the provisions of Negotiable Instruments Act would prevail. Since Section 143 of the Negotiable Instruments Act provides for summary trial of complaint cases under Section 138 and 141 of the Act, it cannot be contended that examination of complainant as per provisions of Section 200 Cr.P.C. would still be required even if the complainant has filed affidavit in support of his complaint at pre-summoning stage and it cannot equally be contended that the cognizance taken by the learned Magistrate against the accused on the basis of such complaint and affidavit would be unsustainable in view of non compliance with the provisions of Section 200 Cr.P.C. Section 145 (1) of the Negotiable Instruments Act clearly permits the evidence of the complainant to be given in the form of affidavit, the compliance to that extent of examination-in-
chief in the form of affidavit is deemed to have been made in the provision of Section 145 (1) of the Act and examination of the complainant on oath as per Section 200 Cr.P.C. cannot be insisted upon over and above the provisions of Section 145 (1) of the Act.
Sub-section (2) of Section 145 of the Negotiable Instruments Act clearly permits the accused or the prosecution to apply to the Court concerned for cross examination of the complainant or any other witness, who has given such affidavit in support of the complaint for SBCWP No.367/2011 - Manmohan Singh vs. M/s Ankur Enterprises & orther connected matters Order dt: 17/5/2011 10/10 his cross examination. Therefore, it cannot be said that accused is left remediless in the matter & Section 145 (2) of the Negotiable Instruments Act adequately safeguards his interest and, therefore, non-examination of the complainant under Section 200 Cr.P.C. before taking cognizance of the offence under Section 138 of Negotiable Instrument Act cannot be said to be fatal for taking cognizance by the learned Magistrate as has been done in the present cases.
7. In view of the above legal position as rightly settled in the later view of this Court in the case of Rakesh Sharma vs. State of Raj.
(supra), this Court finds no merit in the present misc. petitions filed by the accused petitioners challenging cognizance orders and rejection of their applications under Section 203 Cr.P.C and same are liable to be dismissed and they are accordingly dismissed.
8. Learned counsel for the petitioners prays that since arrest warrants have been issued by the learned trial court straightaway against the accused petitioners during the pendency of these misc.
petitions, same may be converted into bailable warrants for summoning the accused petitioners. This prayer of the petitioners can be accepted. Therefore, it is directed that the accused petitioners may be summoned by bailable warrants instead of arrest warrants.
(DR.VINEET KOTHARI), J.
item no. 70-78 baweja/-