Chattisgarh High Court
Raj Kumar Singhania vs Ashok Jain on 19 October, 2011
HIGH COURT OF CHATTISGARH BILASPUR
CrMP NO 128 of 2010 CrMP NO 129 of 2010 CrMP NO 130 of 2010
Raj Kumar Singhania
...Petitioners
Versus
Ashok Jain
...Respondents
! Shri Uttam Pandey counsel for the petitioner
^ Shri Amiyakant Tiwari counsel for respondent
CORAM: Honble Shri Manindra Mohan Shrivastava J
Dated: 19/10/2011
: Judgement
ORDER
Petition under Section 482 of the Criminal Procedure Code Pronounced on 19102011 The aforesaid three petitions (Cr.M.P.Nos.128, 129 & 130 of 2010) filed under Section 482 of the Cr.P.C. are being disposed off by a common order as common question of law and fact arises for consideration in all the three cases.
2. The respondent-complainant-Ashok Jain filed three different complaint cases against the petitioner-accused alleging commission of offence under Section 138 of the Negotiable Instrument Act, 1881 (In short "the Act of 1881") on account of dishonour of three different cheques alleged to be given by the petitioner to the complainant. Upon perusal of the complaint filed in each of the cases, the Magistrate registered offence under Section 138 of the Act of 1881 against the petitioner leading to registration of three criminal cases being Criminal Case No.13, 14 and 15 of 2009.
3. Aggrieved by the order of the Magistrate dated 03-07- 2009 passed by the Magistrate in each of the cases, by which, cognizance has been taken, the aforesaid three petitions under Section 482 of the Cr.P.C. have been filed by the petitioner praying for quashment of impugned order dated 03-07-2009 (Annexure A-5) passed by the Magistrate in each of the cases.
4. Though in the petition, several grounds have been raised, at the time of submission before this Court, learned counsel for the petitioner sought to assail the legality and validity of order dated 03-07-2009 passed by the Magistrate in each of the cases, by which, cognizance has been taken by registering offence under Section 138 of the Act of 1881 against the applicant, on the sole ground that the learned Magistrate exceeded his jurisdiction in taking cognizance and registering the offence and issuing process without examining on oath the complainant and witnesses as per the list of witnesses appended to the complaint. Learned counsel for the petitioner contended that the provisions contained in Section 200 of the Criminal Procedure Code, 1973 (In short "the Code"), which are applicable in proceedings, instituted on a complaint filed under Section 138 of the Act of 1881, mandatorily required the Magistrate to examine the complainant on oath and the witnesses present before issuing process by taking cognizance of the offences alleged. Learned counsel for the petitioner urged that registration of offence and issuance of process, setting criminal law in motion is a serious matter, and therefore, the provisions contained in Section 200 of the Code, which prescribed the manner, in which, the cognizance can be taken, are mandatory and could not be by-passed before taking cognizance and issuing process. He submits that the provisions contained in Section 200 of the Code empower the Magistrate to subject a person to criminal proceedings, therefore, duty has been cast on the Magistrate to examine upon oath the complainant and his witnesses present, if any, in order to ascertain the truth or genuineness of the complaint and also for ascertaining whether there is any evidence in support of the complaint, so as to justify the issue of process. He submits that it is incumbent upon the Magistrate taking cognizance on the complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complaint, the object being to test whether the allegations make out a prima facie case to enable him to issue process. In support of his submission, learned counsel for the applicant placed reliance on a decision of Rajsthan High Court in the case of Prakash Chand versus State of Rajasthan and Another, 2010(1) Crimes 430 (Raj.).
5. On the other hand, learned counsel for the respondent vehemently argued by submitting that the requirement of Section 200 of the Code to examine the complainant on oath and his witnesses, if any present, will not apply in the matter of taking cognizance of a complaint alleging commission of offence under Section 138 of the Act of 1881, in view of the special provisions and procedure prescribed for taking cognizance and trial of commission of such offence under Chapter XVII of the Act of 1881. He submits that the dishonour of cheque under certain circumstances has been made punishable as an offence, in view of the special provisions contained in Section 138 of the Act of 1881, and therefore, if the complaint discloses the essential ingredients of the commission of offence under Section 138 of the Act of 1881, it is not incumbent on the Magistrate to necessarily examine on oath the complainant much less any obligation to call and examine the witnesses of the complainant before taking cognizance by registering offence under Section 138 of the Act of 1881 and issuing process. It is also urged that the said provisions contained in Chapter XVII of the Act of 1881 override the general provisions contained in the Code in the matter of taking cognizance on a complaint. He further submits that the provisions contained in Section 142 of the Act of 1881 override the general provisions with regard to taking cognizance as contained in the Code. Therefore, the Magistrate is under no obligation to examine on oath the complainant and his witnesses. It is further contended that the special procedure prescribed for taking evidence on a affidavit under Section 145 of the Act of 1881 has overriding effect, which prescribes that the evidence of the complainant may be given by him on affidavit, which may, subject to all just exceptions, be read in evidence, in any enquiry, trial or other proceedings under the Code, though reserving to the Court power to summon and re-examine any person and giving evidence on an affidavit as to the facts contained therein. In support of his contention so advanced, learned counsel for the respondent places reliance on the decision of the Supreme Court in the case of Smt. Shamshad Begum versus B. Mohammed, 2008(7) Supreme 529 and M/s Mandvi Co-op. Bank Ltd. v. Nimesh B. Thakore, AIR 2010 Supreme Court 1402.
6. In order to decide the issue whether it is mandatory to examine the complainant on oath and his witnesses, if any present, while taking cognizance and issuing process to the accused, it is necessary to examine the statutory scheme under the Code in the matter of entertaining complaint and taking cognizance and thereby setting criminal law in motion against the accused.
Chapter XV of the Code makes provision with regard to complaint to the Magistrates. Section 200 of the Code being relevant is reproduced:-
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:
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-
(a) if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them."
The provision contained in Section 201 of the Code prescribes the procedure to be followed by the Magistrate, not competent to take cognizance of the case. The provision contained in Section 202 of the Code makes provision with regard to postponement of issue of process. Further, provisions contained in Section 203 of the Code provide for dismissal of complaint.
7. A reading of the provisions contained in Section 200 of the Code extracted above, reveals that Magistrate taking cognizance of offences on a 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 first proviso to the aforesaid provision exhaustively lay down the circumstances, under which, the Magistrate need not to examine the complainant and the witnesses, enumerated in Clause (a) & (b). Proviso to Clause (b) provides that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. Section 202 confers power on the Magistrate to postpone the issue of process against the accused and enquire into the case himself or direct investigation to be made by the Police Officer or by such person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. In cases where the accused is residing at a place beyond the area in which he exercises his jurisdiction, it is obligatory on the Magistrate to postpone the issue of process, and either inquire into the case himself or direct an investigation to be made by a Police Officer or by such person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. The proviso contains two clauses (a) & (b), carving out exception to general provisions relating to direction for investigation. Section 203 provides that after considering the evidence on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate is of the opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing.
8. The provision relating to commencement of process before the Magistrate are contained in Chapter-XVI and amongst various provisions, Section 204(1) of the Code importantly provides that if in the opinion of a Magistrate taking cognizance of an offence, there is sufficient ground for proceeding, then the Magistrate shall issue summons or warrant depending upon whether it is summons case or warrant case.
9. The aforesaid statutory scheme of taking cognizance on a complaint made to the Magistrate alleging commission of offence, makes it clear that the action of taking cognizance, issuing process by way of summons or warrant, is not a mechanical process, but requires certain procedure to be followed and due application of mind to material on record to find out whether or not there is sufficient ground for proceeding. As the effect of taking cognizance by registering an offence and issuing process is to set criminal law in motion and subjecting a person to rigour of criminal trial, the requirement of examination of the complainant on oath cannot be treated to be an empty formality or to say that the same is merely directory, violation of which, would have no vitiating effect on the order taking cognizance. A reading of provision contained in Section 200 of the Code reveals that duty has been cast on the Magistrate by providing that the Magistrate 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 salutary object and purpose behind enacting such specific provisions of casting duty on the Magistrate by use of words indicating mandatory nature of the provision is for ascertaining the truth and genuineness of the complaint and also for ascertaining whether there is any evidence in support of the complaint, so as to justify the issue of process. It is, therefore, incumbent on the Magistrate taking cognizance on a complaint to examine on oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complaint. The object is to test whether the allegations make out a prima facie case to enable him to issue process.
10. In the case of Nirmaljit Singh Hoon v. State of W.B. (1973) 3 SCC 753, the Supreme Court held as follows:-
17. "An enquiry or investigation is ordered under Section 202 of the Code of Criminal Procedure by a Magistrate on receipt of a complaint for the purpose of ascertaining the truth or falsehood of the complaint. If the Magistrate before whom the complaint is made or to be whom it has been transferred, after considering the statement on oath of the complainant and his witnesses and the result of enquiry or investigation under Section 202 is of the opinion that there is no sufficient cause for proceeding, he may for reasons to be recorded briefly, dismiss the complaint. If, on the contrary, the Magistrate taking cognizance of the offence is of the opinion that there is sufficient cause for proceeding, he should issue process against the accused in accordance with Section 204 of the Code."
11. In the case of Adalat Prasad vs. Rooplal Jindal and others, (2004) 7 SCC 338, the Supreme Court had an occasion to examine the scheme of the Code, which provides for consideration of complaints by Magistrates and commencement of proceedings before the Magistrate, as contained in Chapters XV & XVI of the Code and it was held:-
12. "Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses have not made out sufficient ground for proceeding. Per contra, if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage have materials to proceed, he can proceed to issue process under Section 204 of the Code.
13. Section 202 contemplates "postponement of issue of process". It provides that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code."
The Supreme Court emphasized upon the mandatory nature of the requirement of examination of the complainant in following words:-
14. "But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code."
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12. In a subsequent decision in the case of Sabitha Ramamurthy& Anr. v. R.B.S. Channabasavaradhya , AIR 2006 Supreme Court 3086, while examining the statutory scheme of Section 141 of the Act of 1881 & 200 of the Code, the Supreme Court again emphasized upon the mandatory requirement of examination on oath of the complainant in following words:-
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"In a case where the court is required to issue summons which would put the accused to some sort of harassment, the court should insist strict compliance with the statutory requirements. In terms of Section 200 of the Code of Criminal Procedure, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. In the event, ultimately, the prosecution is found to be frivolous or otherwise mala fide, the court may direct registration of case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The relevant provisions of the Code of Criminal Procedure are required to be construed from the aforementioned point of view."
13. The aforesaid decisions and examination of the statutory scheme as discussed above leads to the inevitable conclusion that the Magistrate while entertaining complaint under Section 200 of the Code taking cognizance upon a complaint is mandatorily required to examine on oath the complainant and his witnesses, present, if any. The aforesaid legal position propounded by the Supreme Court has been followed in Prakash Chand versus State of Rajasthan and Anr., 2010(1) Crimes 430 (Raj.), N. Harihara Iyer versus State of Kerala, 2000 Cr.L.J. 1251 and Maharaja Developers & Anr. v. Udaysingh Pratapsinghrao Bhonsle & Anr., 2007 Cr.L.J. 2207.
14. The contention of learned counsel for the respondent that special provision contained in the Act of 1881 with regard to taking of cognizance as provided under Section 142 and with regard to taking evidence on affidavit as provided under Section 145, render inapplicable the provisions contained in Section 200 of the Code, now needs to be examined. In order to deal with the issue, it is necessary to look into the provisions contained in Section 4 & 5 of the Code, which are reproduced herein below:-
4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.
5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
Sub Section(2) of Section 4 of the Code provides that all offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. Section 5 of the Cr.P.C. further provides that nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.
Therefore, in order to appreciate the submission of learned counsel for the respondent, it is to be seen as to whether there exists any special provision contained in Chapter XVI of the Act of 1881, regulating the manner of investigating or inquiring into, trying or otherwise dealing with the offence under Section 138 of the Act of 1881. Section 139 of the the Act of 188, creates presumption in favour of holder of a cheque. Section 140 specially carves out the defences, which may not be allowed in any prosecution under Section 138 of the Act of 1881. Section 141 of the Act of 1881 makes provision with regard to criminal liability in cases of a company. Section 142 of the Act of 1881, which begins with a non-obstante clause, thereby giving overriding effect, makes provision with regard to cognizance of offence. The scope, extent and ambit of such special provisions with regard to cognizance of offences was considered by the Supreme Court in a case of Pankajbhai Nagjibhai Patel v. State of Gujarat, AIR 2001 SC 567, wherein it was held:-
"The non-obstante expression provided in Section
142 is intended to operate only in respect of three aspects and nothing more. The first is this: insofar as the offence under Section 138 is concerned no Court shall take cognizance except upon a complaint made by the payee of the holder in due course of the cheque, the second is this: so far as the offence under Section 138 of the Negotiable Instruments Act is concerned such complaint shall be made within one month of the cause of action. The third is this: for the offence under Section 138, no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of first class shall try the said offence,"
Further in the aforesaid case, it was held by the Supreme Court:-
"Non-application of the Code on "any special jurisdiction or power conferred by any other law for the time being in force" is thus limited to the area where such special jurisdiction or power is conferred. The non obstante clause in Section 142 of the NI Act is intended to operate only in respect of three aspects and nothing more. The first is this: Under the Code of Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon 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 the insofar as the offence under Section 138 is concerned no Court shall take, cognizance except upon a complaint made by the payee or the other holder in due course of the cheque.
The second is this: Under the Code a complaint could be made at any time subject to the provisions of Chapter XXXVI. But so far as the offence under Section 138 of the NI Act is concerned such complaint shall be made within one month of the cause of action.
The third is this: Under Article 511 of the First Schedule of the Code, if the offence is punishable with imprisonment for less than 3 years or with fine only under any enactment (other than Indian Penal Code) such offence can be tried by any Magistrate. Normally Sectioin 138 of the NI Act which is punishable with a maximum sentence of imprisonment for one year would have fallen within the scope of the said Article. But Section 142 of the NI Act says that for the offence under Section 138, no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of first class shall try the said offence."
15. Therefore, it cannot be said that overriding provisions contained in Section 142 of the Act of 1881, have the effect of absolving the Magistrate of its mandatory duty to examine the complainant on oath and his witnesses, if any present, at the time of taking cognizance and issuing process to accused, even in cases relating to commission of offence under Section 138 of the Act of 1881.
16. As far as submission that in view of the special provisions contained in Section 145 of the Act of 1881 with regard to taking evidence on affidavit is concerned, it is to be borne in mind that the special provision under Section 145, in the statutory scheme of Chapter XVII of the Act of 1881 is placed below Section 143, 144. While Section 142 makes provision with regard to cognizance of offences, Section 143 makes provision with regard to summary trial of cases and Section 144 relates to mode of service of summons. Placement of Section 145 thereafter, on a rational interpretation of the statutory scheme, clearly shows that the same is applicable to a post cognizance proceedings during trial and not at pre cognizance stage. The provisions of Section 142 makes specific provision with regard to taking of cognizance. If it was the intention of the law maker that the requirement of examining on oath the complainant and his witnesses, if any present, is to be dispensed with in the matter of complaint relating to commission of offence under Section 138 of the Act of 1881, the legislature would have certainly provided specific provision in that regard, but the legislature has chosen to prescribe different provision with regard to cognizance of offence only in respect of matters exhaustively enumerated in Section 142 of the Act of 1881 and in view of the authoritative pronouncement of the Supreme Court in the case of Pankajbhai Nagjibhai Patel (supra), It cannot be inferred either from the provisions of Section 142 or Section 145 of the Act of 1881 that in the matter of taking cognizance relating to commission of offence under Section 138 of the Act of 1881, statutory requirement of examining on oath the complainant and his witnesses, if any present, has been dispensed with. It is extremely relevant to mention that the Supreme Court was considering the requirement of examining on oath the complainant with specific reference to the complaint alleging commission of offence under Section 138 of the Act of 1881, in the case of Sabitha Ramamurthy& Anr. (supra), wherein the Supreme Court emphasized and insisted on strict compliance of statutory requirements in cases, where the Court is required to issue summons, which would put the accused to some sort of harassment and also categorically hold that in terms of Section 200 of the Code, the complainant is bound to make statements on oath as to how the offence has been committed and how the accused persons are responsible therefor. The mandatory nature of requirement of examining on oath the complainant even in the cases of offences relating to the Act of 1881, has been emphasized in a Division Bench decision of Kerala High Court in the case of N. Harihara Iyer (supra) and Division Bench of Bombay High Court in the case of Maharaja Developers & Anr. (supra). That is the view, which has also been taken by the Rajasthan High Court in the case of Prakash Chand (supra).
17. The two decisions, which have been relied on by learned counsel for the respondent are clearly distinguishable. The decision in the case of Smt. Shamshad Begum (supra) relates to territorial jurisdiction aspect and declares as to what are the components of offence under Section 138 of the Act of 1881. Since, learned counsel for the petitioner has challenged the impugned order of taking cognizance only on the sole issue, discussed and decided above, it is not necessary for this Court to dwell into another aspect at the instance of the respondent. The decision in the case of M/s Mandvi Co-op. Bank Ltd.(supra) has been rendered on different fact situations and issue involved therein, in which the Supreme Court has dealt with scope and ambit of the provisions contained in Section 145(2) of the Act of 1881.The issues, which arose for consideration before the Supreme Court in the aforesaid case, have been stated in para 8 of the decision. The question, whether it is obligatory on the Magistrate to examine on oath the complainant and his witnesses, if any present, before setting criminal law in motion by issuing process to the accused in cases arising out the allegation of commission of offence under Section 138 of the Act of 1881, perforce section contained in Section 200 of the Code, was neither raised nor decided. The issues, which fell for consideration before the Supreme Court were, (a) the extent of the right of the accused under Section 145(2) of the Act of 1881, (b) Whether the provisions of sub section(1) and sub section(2) of Section 145 of the Act of 1881 would apply to the proceedings that were pending on February 6, 2003, the date on which those provisions were inserted in the Act, (c) Whether the right to give evidence on affidavit as provided to the complainant under Section 145(1) of the Act is also available to the accused.
18. The aforesaid two decisions do not help the case of respondent, more so in view of the decisions of the Supreme Court in the case of Pankajbhai Nagjibhai Patel (supra), Adalat Prasad (supra) and Sabitha Ramamurthy& Anr. (supra).
19. In the result, order impugned passed in each of the aforesaid petitions by the Magistrate on 03-07-2009 taking cognizance and registering offence against the petitioner, are declared illegal and hereby set aside. The Magistrate, however, may proceed in the matter of three complaints, in accordance with law.
20. Accordingly, all the three petitions are allowed.
JUDGE