Karnataka High Court
K. Srinivasa vs Kashinath on 16 September, 2004
Equivalent citations: 2005(1)ALD(CRI)13, IV(2005)BC497, 2004CRILJ4566, ILR2005KAR2890, 2004(7)KARLJ535, 2004 CRI. L. J. 4566, 2004 AIR - KANT. H. C. R. 3144, (2005) 33 ALLINDCAS 310 (KAR), 2005 ALL MR(CRI) 7, (2005) ILR (KANT) 2890, (2005) 1 RECCRIR 115, (2005) 3 KCCR 1804, (2005) 1 CHANDCRIC 129, (2005) 2 CURCRIR 385, (2005) 4 BANKCAS 497, (2005) 1 ICC 721, (2005) 1 ALLCRILR 419, 2005 (2) ANDHLT(CRI) 406 KAR, (2005) 2 ANDHLT(CRI) 406
Author: Mohan Shantanagoudar
Bench: Mohan Shantanagoudar
ORDER Mohan Shantanagoudar, J.
1. The petitioner herein, who is the accused in C.C. No. 26750/2003 (P.C.R No. 323/2003) pending on the file of XTV Additional Chief Metropolitan Magistrate Court, Bangalore has come forward with the present revision seeking for setting aside the order of issuing process and for quashing of the proceedings in the said criminal case.
2. The records disclose that the respondent herein lodged the complaint before the Court below alleging the offence punishable under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "Act" for short) against petitioner. By the order dated 15-3-2003, the Court below ordered to issue of process against the petitioner for the said offence.
3. The main point canvassed by learned counsel for petitioner is that the Court below has gravely erred in issuing process against the petitioner without recording the sworn statement of the complainant; and that the Court below has , on the basis of the averments made in the affidavit filed by the complainant has issued process. Ac-ding to the learned counsel for the petitioner, the recording of sworn statement cannot be dispensed with as the same is mandatory under the provisions of Section 200 of the Code of Criminal Procedure. In other words, the affidavit of the complainant cannot substitute the mandatory requirement of the sworn statement of the complainant prior to issuing of process. On the said ground the learned counsel for the petitioner prays for quashing of the entire proceedings against the petitioner.
4. Having regard to the fact that the existing provisions in the "Act", namely. Sections 138 to 142 have been found deficient in adjudicating the matters relating dishonour of cheques and as the Courts are unable to dispose of such cases expeditiously, the Legislature thought it fit to further amend the "Act" by inserting Ss. 143 to 147. The objects and reasons for introduction of Sections 143 to 147 are as under :
"The existing provisions in the Negotiable Instruments Act, 1881. namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has provided to be inadequate, the procedure prescribed for the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act.
Keeping in view the recommendations of the Standing Committee on Finance and other representations, it has been decided to bring out, inter alia, the following amendments in the Negotiable Instruments Act, 1881, namely :--
(i) to increase the punishment as prescribed under the Act from one year to two years;
(ii) to increase the period for issue of notice by the payee to the drawer from 15 days to 30 days;
(iii) to provide discretion to the Court to waive the period of one month, which has been prescribed for taking cognizance of the case under the Act.;
(iv) to prescribe procedure for dispensing with preliminary evidence of the complainant;
(v) to prescribe procedure for serving of summons to the accused or witness by the Court through speed post or empanelled private couriers;
(vi) To provide for summary trial of the cases under the Act with a view to speeding up disposal of cases;
(vii) to make the offence under the Act compoundable;
(viii) to exempt those directors from prosecution under Section 141 of the Act who are nominated as directors of a company by virtue of their holding any offence or employment in the Central Government or the State Government, as the case may be;
(ix) to provide that the Magistrate trying an offence shall have power to pass sentence of imprisonment for a term exceeding one year and amount of fine exceeding five thousand rupees;
(x) to make the Information Technology Act, 2000 applicable to the Negotiable Instruments Act, 1881, in relation to electronic cheques and truncated cheques subject to such modifications and amendments as the Central Government, in consultation with the Reserve Bank of India, considers necessary for carrying out the purposes of the Act, by notification in the Official Gazette; and
(xi) to amend definition of "bankers books" and "certified copy" given in the Banker Books Evidence Act, 1891.
The proposed 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 Negotiable Instruments Act, 1881.
The Bill seeks to achieve the above objects."
5. It is clear from the aforesaid statement of Objects and Reasons that these amendments are aimed at early disposal of the cases arising out of the Act. It is relevant to extract Section 145 of the Act, which reads thus :
"145 (1) Notwithstanding anything contained in the Code of Criminal Procedure 1973, the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any 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."
A conbined reading of the Statement of objects and reasons and Section 145 of the Act makes it clear that the Legislature having felt that the existing provisions of the Act are inadequate to tackle delay in disposal of cases, amended the Act by introducing Sections 143 to 147 to the Act so as to avoid the cost and valuable time of the Courts.
6. Section 200 of the Code of Criminal Procedure provides the procedure for dealing with the private complaint, according to which, jurisdictional Magistrate the 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. The proviso to this section provides certain exceptions.
7. By insertion of new Section 145 of the Act, the statute prescribes the procedure of having the evidence of complainant in the form of affidavit, notwithstanding anything contained in the Code of Criminal Procedure 1973. The said Section 145 is an exception to general procedure prescribed in the Code of Criminal Procedure for recording the evidence and it has got overriding effect. 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 of Cr.P.C. if the evidence is of a formal character, the same can be obtained by way of affidavit. The Apex Court, in the case of State of Punjab v. Naibuddin , while discussing the scope and ambit of Section 296 of Cr.P.C. observed thus :
The normal mode of giving evidence is by examining the witness in Court. But that course involves, quite often, spending of time of the witness, the trouble to reach the Court and wait till he is called by the Court, besides all the strain in answering questions and cross-questions in open Court. It also involves costs, which on many occasions are not small. The enabling provision of Section 296 is thus a departure from the usual mode of giving evidence. The object of providing such an exception is to help the Court to gain the time and cost, besides relieving the witness of his troubles, when all that the said witness has to say in Court relates only to some formal points."
The offence under Section 138 of the Act is a technical offence. Thus in cases falling under Section 138 of the Act, generally, few technical conditions have to be proved by the Complainant as contemplated under Section 138 of the Act. The nature of sworn statement to be given by the complainant shall be only in conformity with Section 138 and not any other aspect. He has to narrate the steps taken by him in pursuance to dishonour of cheque. As such , in view of the aforesaid dictum laid down by the Apex Court and also for the purpose of achieving the object of Legislature of speedy disposal of the cases falling under Section 138 of the Act by disposing with the recording of preliminary evidence, Section 145 of the Act is introduced.
10. The expression "affidavit" has been commonly understood to mean a sworn statement in writing made especially under oath or on affirmation before the authorised Magistrate or officer. The affidavit has been defined in Sub-section (iii) of Section 3 of General Clauses Act 1897 to include "affirmation and declaration in the case of person by law allowed to affirm or declare instead of swearing." The essential ingredients of an affidavit are that the statements, or declarations are made by the deponent relevant to the subject matter and in order to add sanctity to it, he swears or affirms the truth of the statements made in the presence of a person who in law is authorised either to administer oath or to accept the affirmation. There is a responsibility on the declarant for making precise and accurate statements in affidavit. The part or the role assigned to the person entitled to administer oath is no less sacrosanct. Section 3 of the Oaths Act, 1969 specifies persons on whom the power to administer oath or record affirmation or oath before the person authorised to administer the same and then at the foot of affidavit, the signature of the deponent must appear and below that the officer entitled to administer oath must put his signature in token of both, that he administered the oath and that deponent has signed in his presence. Thus it is clear that necessary safeguards are to be taken at the time of swearing to the affidavit. In view of the same, the Legislature must have thought it fit to dispense with recording of the sworn statement of the complainant by accepting the affidavit. If at all, any party wishes to examine the deponent of such affidavit, it is always open for him to do so by making application before the competent Court as enumerated in Section 145(2) of the "Act".
11. In view of the discussion made above, this Court is of the considered view that the non-obstante clause in Section 145 of the "Act" dispenses the procedure contemplated in Section 200 of the Code of Criminal Procedure in respect of examination of the complainant and his witnesses on oath. Consequently, recording of sworn statement by the Magistrate in the criminal cases falling under Section 138 of the Negotiable Instruments Act may be dispensed with by accepting the affidavit of the complainant and his witnesses.
In view of the above, I do not find merit in the present revision petition and the same is liable to be rejected. Hence, the following order is made.
The criminal revision petition is dismissed.