Madhya Pradesh High Court
Banshilal Shah vs Abdul Munnar on 15 September, 2009
(M.Cr.C. No.3940/09)
15/9/09 Shri R.K.Samaiya, Advocate for the petitioner.
Shri Rajesh Dubey, Advocate for the respondent.
Arguments heard.
This is a petition, under Section 482 of the Code of Criminal Procedure (hereinafter referred to as "the Code"), for quashing the proceedings pending against the petitioner as MJC No.754/2008 in the Court of JMFC, Waidhan. In that case, cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act (for short "the Act") was taken upon a complaint made by the respondent. However, before directing the issuance of process under S.204 of the Code, the learned Magistrate did not examine the complainant (respondent here). Fifteen thousand In reply, while inviting attention to the contents of the corresponding order dated 22/8/2008, respondent has submitted that the direction to issue process was given only after taking into consideration the affidavit filed by him in lieu of his oral examination under S.200 of the Code.
Placing reliance on a recent decision of the Supreme Court in National Small Industries Corporation Limited v. State (NCT Delhi) (2009)1 SCC 407, learned counsel for the petitioner has strenuously contended that examination of the complainant under S.200 of the Code is mandatory. In that case, while explaining the rationale behind exemption of a public servant from the mandatory examination under S.200, the Apex Court quoted the following observations made in Associated Cement Co. Ltd. v. Keshavanand (1998) 1 SCC 687) with approval -
"22. Chapter XV of the new Code contains provisions for lodging complaints with Magistrates. Section 200 as the starting provision of that Chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words 'shall examine on oath the complainant ...'. The Magistrate is further required to reduce the substance of such examination to writing and it 'shall be signed by the complainant'. Under Section 203 the Magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint."
Learned counsel for the respondent still urged that by virtue of S.145(1) of the Act, he was entitled to give evidence by way of affidavit. However, this aspect of the matter has elaborately been dealt with by a Division Bench of Bombay High Court in Maharaja Developers v. Uday Singh Pratapsinghrao Bhonsle (2007 CrLJ 2207).
Accordingly, non obstante clause either in Section 142 or in Section 145(1) does not relieve the Magistrate of his duty to examine the complainant on oath as 'examination' under S.200 of the Code is altogether different from 'evidence' as contemplated in Section 145(1) of the Act.
In view of non-compliance with the statutorily mandatory procedure of examining the complainant, the order dated 22/8/08 directing issuance of process deserves to be interfered with under the inherent powers. But, it would not be possible to quash the complaint in its entirety (Narmada Prasad Sonkar v. Sardar Avtar Singh Chabara (2006) 9 SCC 601 referred to).
In the result, the petition is allowed in part. The order dated 22/8/2008 (above) is hereby set aside. However, the Magistrate shall be at liberty to make an inquiry, under Sections 200 and 202 of the Code, to ascertain as to whether there exists sufficient ground for proceeding against the petitioner in respect of the offence under S.138 of the Act.
(R.C. Mishra) JUDGE