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Karnataka High Court
K.Srinivasa - Appellant
Versus
Kashinath - Respondent
Decided On : 09-16-04
CRI.R.P. : 94 of 2004
CRIMINAL PROCEDURE CODE, 1973
Section 200 -Affidavit in lieu of sworn statement of complainant -Complaint under Negotiable Instrument Act, 1881 -Non -obstante clause in Section 145 of the Act dispenses procedure contemplated under Section 200, Criminal Procedure Code, 1973 -Hence, recording of sworn statement of complainant may be dispensed with by accepting affidavit.
[Mohan Shantanagoudar, J]: 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 U/S. 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. Thus it is evident that even at the stage of issuing process on the basis of the complaint filed U/S. 200 of Cr.P.C., the Court can accept the affidavit of the complainant instead of recording his 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.
Case Referred: 2001 (8) SCC 578.
Procedure under
CRIMINAL PROCEDURE CODE, 1973
Section 200 -Procedure under -Exception -Offence under Negotiable Instrument Act, 1881 -Section 145 of the Act is an exception to general procedure prescribed in the Code.
[Mohan Shantanagoudar, J]: 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.
Affidavit
GENERAL CLAUSES ACT, 1897
Section 3(iii) -Affidavit -Meaning.
[Mohan Shantanagoudar, J]: 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".
Case Referred: 2001 (8) SCC 578.
Affidavit
GENERAL CLAUSES ACT, 1897
Section 3(iii) -Affidavit -Essential ingredients.
[Mohan Shantanagoudar, J]: 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 authorized either to administer oath or to accept the affirmation. There is a responsibility on the declarant for making precise and accurate statements in affidavit.
Affidavits
INDIAN EVIDENCE ACT, 1872
Section 3 -Affidavits -Can be used as evidence.
[Mohan Shantanagoudar, J]: 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 proved by affidavit.
Object of statute
INTERPRETATION OF STATUES
Object of statute -Act should be construed in such a way so as to give effect to the object of the Act.
[Mohan Shantanagoudar, J]: 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.
Sworn statement of complainant by affidavit
NEGOTIABLE INSTRUMENT ACT, 1881 - Section 138 -Sworn statement of complainant by affidavit -Permitted under the law -Accused not prejudiced.
[Mohan Shantanagoudar, J]: In cases falling U/S. 138 of the Act, generally, few technical conditions have to be proved by the Complainant as contemplated U/S. 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. For the purpose of achieving the object of Legislature of speedy disposal of the cases falling under Section 138 of the Act by dispensing with the recording of preliminary evidence, Section-145 of the Act is introduced.
Case Referred: 2001 (8) SCC 578.
Affidavit in lieu of sworn statement
NEGOTIABLE INSTRUMENT ACT, 1881 - Section 145 -Affidavit in lieu of sworn statement -Non -obstante clause in Section 145 dispenses procedure contemplated under Section 200, Criminal Procedure Code, 1973 -Hence, recording of sworn statement of complainant may be dispensed with by accepting affidavit -It can be accepted even at the time of issuing process.
[Mohan Shantanagoudar, J]: 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 U/S. 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. Thus it is evident that even at the stage of issuing process on the basis of the complaint filed U/S. 200 of Cr.P.c., the Court can accept the affidavit of the complainant instead of recording his 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.
Case Referred: 2001 (8) SCC 578.
Nature
NEGOTIABLE INSTRUMENT ACT, 1881 - Section 145 -Nature -Is similar to Section 296 of Criminal Procedure Code, 1973.
[Mohan Shantanagoudar, J]: The wordings found in Section-145 of the Act are more or less similar to Section-296 of the Code of Criminal Procedure.
Procedure under
NEGOTIABLE INSTRUMENT ACT, 1881 - Section 145 -Procedure under -The provision is an exception to general procedure prescribed in Criminal Procedure Code, 1973.
[Mohan Shantanagoudar, J]: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.
Affidavit
OATHS ACT, 1969 - Section 3 - Affidavit -Administration of -Procedure.
[Mohan Shantanagoudar, J]: The affidavit requires a solemn affirmation or oath before the person authorized 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.
Case Referred: 2001 (8) SCC 578.
( 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 XIV 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. According 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; (VLLI) 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 ch
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