Madhya Pradesh High Court
Dinesh Vaishnav [Bairagi] vs Kishor Kumar Gupta on 6 January, 2012
1
M.Cr.C. No.2240 of 2011
HIGH COURT OF JUDICATURE MADHYA
PRADESH, JABALPUR
SB: HON. SHRI N.K.GUPTA,J
Misc. Criminal Case No.2240/2011
Dinesh Vaishnav (Bairagi).
-Vs-
Kishor Kumar Gupta.
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Shri Pradeep Naveriya, Advocate for the applicant.
Shri Paritosh Trivedi, Advocate for the respondent.
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ORDER
(Passed on 6th day of January, 2012) The petitioner has preferred this petition under Section 482 of Cr.P.C. for quashing the Complaint Case No.1389/2009 pending before the Judicial Magistrate First Class, Balaghat.
2. The factual aspect of the case is that the respondent has moved a complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for brevity "Special Act, 1881") before the Chief Judicial Magistrate, Balaghat, which was duly registered and is pending before the concerned Magistrate.
3. Learned counsel for the applicant has submitted that the trial Court has committed a gross error in not considering the fact that examination of the complainant under Section 200 of the Code of Criminal Procedure, 1973 (for short "Code, 1973") was mandatory. In support of his contention, he has placed his reliance on the order of this Court in the 2 M.Cr.C. No.2240 of 2011 case of "Banshilal Vs. Abdul Munnar" [2010(1) MPHT 40], in which the examination of the complainant under Section 200 of the Code, 1973 is held mandatory. In such circumstances, the complaint could not be registered, and therefore it is liable to be quashed.
4. On the other hand, learned counsel for the respondent has supported the impugned order. He submits that as per the order passed by this Court in the case of "M/s Amita Gas Service and another Vs. Raman Gupta" [2011 (1) MPHT 191] and the judgment of the Hon'ble Apex Court in the case of "Mandvi Cooperative Bank Limited Vs. Nimesh B. Thakore" [2010(2) MPHT 397(SC)], it is directed that the evidence under Section 200 and 202 of the Code, 1973 may be given by way of an affidavit, and therefore registration of complaint is valid one.
5. After considering the submissions made by learned counsel for the parties, only one short point is to be considered as to whether the evidence adduced by the complainant by way of an affidavit may be treated as his statement under Section 200 of the Code, 1973. Firstly, the provision of Section 145 of the Special Act, 1881 may be perused, which is as under:-
"145. Evidence on affidavit.-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code".3 M.Cr.C. No.2240 of 2011
This provision makes it clear that the complainant may give his statement by submission of an affidavit in any enquiry, trial or other proceeding under the Special Act. The provisions of the Special Act, 1881 would have overriding effect on the general provisions of Section 200 and 202 of the Code, 1973, because the Special Act, 1881 is a special enactment. Secondly, by the provisions of Section 145 of the Special Act, 1881, examination of the complainant under Section 200 of the Code, 1973 may be done by submission of an affidavit relating to the facts of the case. Examination of the complainant under Section 200 of Code, 1973 comes under the category of an enquiry, and therefore provision of Section 145 of the Special Act, 1881 provides for submission of an affidavit for that purpose. If such affidavit is submitted, then according to the said provision, it shall be treated as evidence of the complainant under Section 200 of the Code, 1973.
6. The Hon'ble Apex Court in the case of "Mandvi Co-operative Bank Limited (supra) held that the evidence given on affidavit is in the nature of examination-in-chief, so accused can only cross examine the person concerned as to facts stated in the affidavit. It is also held that the evidence given on affidavit must be admissible and it must not include inadmissible materials such as facts not relevant to the issue or any hearsay statements. In case if affidavit of the complainant contains statement, which is not admissible in evidence, then it is always open to the accused to point out the same to the Court and the Court would surely deal with such objection. In the light of the ratio laid down by the Hon'ble Apex Court in the matter of "Mandvi Co-operative Bank 4 M.Cr.C. No.2240 of 2011 Limited" (supra), the observations made by this Court in the case of "Banshilal" (supra) are not applicable in the present case. Submission of the evidence by the complainant and his witnesses with the help of their affidavits is a sufficient compliance of the provisions of Section 200 and 202 of the Code, 1973.
7. In such circumstances, where the complainant has submitted an affidavit in support of his complaint which contains the entire factual position, then it is proper compliance of Section 200 of the Code, 1973 in light of the provisions of Section 145 of the Special Act, 1881. Consequently, registration of the complaint on the basis of that affidavit is legal. In such circumstances, no extra ordinary jurisdiction under Section 482 of Cr.P.C. may be invoked. There is no other ground raised by the petitioner. In such circumstances, the present petition is devoid of any merits, and therefore the same deserves to be dismissed.
8. Consequently, the present petition of the petitioner filed under Section 482 of Cr.P.C. is hereby dismissed. The stay order granted by this Court vide order dated 28.2.2011 is vacated.
9. A copy of this order be sent to the Courts below with their records forthwith so that trial may take place as early as possible.
(N.K.Gupta) Judge 06.01.2012 Ansari.