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High Court of Karnataka
MOHAN M. SHANTANAGOUDAR & V. SURI APPA RAO, JJ.
Noorunnisa Begum
Versus
Gopal & Another
Crl.R.P. No. 2604 of 2012
Decided on: 09-07-2013
NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138: [Mohan M. Shantanagoudar & V. Suri Appa Rao, JJ] Offence punishable under - "Whether the recording of a sworn statement by the Magistrate as required under Section 200 of Criminal Procedure Code would be mandatory and whether the same could either be dispensed with or an affidavit be received in lieu of a sworn statement" ? - Held, Section 200 of Cr.P.C., mandates that if a private compliant is filed, the Magistrate shall apply his mind and shall proceed to examine the complainant and his witnesses, if any present. Exceptions are carved out and it stipulates that such examination need not be done if the complaint is filed by a public servant acting or purporting to act in the discharge of his official duties. Such examination is also not necessary where a Court has made the complaint. Proviso (b) to Section 200 of Cr.P.C., further stipulates that such examination of the complainant and recording of sworn statement need not be done if the Magistrate makes over the case for enquiry or trial under Section 192 of Cr.P.C., to another Magistrate. In all other cases, the examination of the complainant needs to be made. The Cr.P.C., does not provide for any other exception.
The Magistrate has to decides as to whether the process should be issued or not based on the material on record. He has to apply his mind judiciously to the facts of the case. Even if the affidavit is filed in lieu of the sworn statement of the complainant, the complaint and the documents submitted along with the complaint as well as the affidavit will have to be looked into by the Magistrate by applying his judicious mind before taking further steps in accordance with law. The Magistrate is expected to apply his mind to ensure rejection of frivolous complaints and to accept the genuine and bona fide complaints. Even on the basis of the sworn statement recorded at pre-process stage, the Magistrate may not be in a position to conclude that what was stated in the sworn statement by the complainant or his witnesses is gospel truth inasmuch as such sworn statement is not tested with the cross-examination.
At the pre-process stage, the Magistrate will have only the benefit of the sworn statements of the complainant and his witnesses, if any, and the documents produced. Even when the affidavits of the complainant and his witnesses are filed in the matter arising under the provisions of Negotiable Instruments Act, the Magistrate would be having the benefit of only the affidavit and the other documents apart from the complaint. The Magistrate has to apply his mind to the complaint, documents and the sworn statement/affidavit before taking further steps in accordance with law. Therefore, there may not be any difference between the sworn statement of the complainant and the affidavit duly sworn to by the complainant to be filed in lieu of the sworn statement at the pre-process stage while dealing with the matters arising under Section 138 of the N.I.Act.
The word, ’evidence’ includes any statement recorded during the course of enquiry also. It need not be strictly construed as the one recorded during the course of trial.
The word, ’evidence’ as defined under Section 3 of the Evidence Act means and includes all statements which the Court permits or requires to be made before it by the witnesses, in relation to matters of fact under inquiry. Thus, it is clear that the statements which the Court permits or requires to be made before it by the witnesses even during the course of enquiry would be evidence. It is strictly not necessary that the evidence should come on record during the course of trial only. On the other hand, the evidence may come during the course of enquiry also inasmuch as the definition of evidence is inclusive in nature which encompasses in itself all the statement which the Court permits or requires to be made before it by the witnesses. Any statement which the Court permits or requires to be made before it by the witnesses, whether such statement be tested by a cross-examination or not, will certainly be evidence for the purpose of Section 3 of the Evidence Act. The statement of the witnesses recorded under Section 200 or 202 of Cr.P.C., are not tested by cross-examination.
NEGOTIABLE INSTRUMENTS ACT, 1881 - Section 138: [Mohan M. Shantanagoudar & V. Suri Appa Road, JJ] Offence under - Enquiry envisaged under Section 200 Cr.P.C. - Held, The procedure followed by the Court at the stage of Section 200 Cr.P.C., or prior to the stage of Section 203 or 204 Cr.P.C., would be nothing but ’enquiry’. Thus, what is recorded during the course of preliminary enquiry can be regarded as ’preliminary evidence’. Section 145 of the N.I. Act is inserted with the avowed object of dispensing with the preliminary evidence of the complainant in order to have speedy trial. In this view of the matter, there is no hesitation in the mind of the Court but to conclude that the affidavits of the complainant/his witnesses may be received under Section 200 of Cr.P.C. The affidavits so received may be termed as ’pre-summoning evidence’. As post-summoning evidence can be received in the form of affidavit of the complainant or his witnesses under Section 145 of the N.I. Act, there is no reason to debar the filing of affidavits at the pre-summoning stage.
There cannot be any dispute that the provisions of Section 143 to 145 of the N.I.Act have got overriding effect. These Sections contain be non-obstante clause. Therefore, the relevant provisions under Cr.P.C., are subject to the provisions of Sections 143 to 145 of the N.I. Act. Such provisions, of Cr.P.C., thus, are not attracted. Moreover, Section 4(2) Cr.P.C., further makes it amply clear that all offences under any other law including N.I. Act shall be investigated, inquired into, tried and otherwise dealt with according to same provisions but subject to the enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is further made clear in Section 5 of Cr.P.C., that nothing contained in the Cr.P.C., 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. Since the special law i.e., N.I. Act provides particular procedure for receiving the complaint and for filing the affidavit in lieu of the sworn statement, those provisions prevail over the procedure contemplated under Section 200 of Cr.P.C.
The object of enquiry envisaged under Section 200 of Cr.P.C., is to verify the truth or falsehood of the averments made in the complaint and to find out whether there is prima facie material or evidence in support of the complainant to issue Process against an accused and nothing more than that. And that object is fulfilled by the documents filed with such complaints for offence under Section 138 N.I.Act. So examination or non-examination of the complainant and his witnesses, if any, on oath has no such effect on the enquiry in respect of the complaints filed for offence under Section 138 of N.I. Act. The interest of the accused is well protected under Section 145(2) of the N.I.Act inasmuch as the accused can call for the complainant or any witnesses for being cross-examined.
On facts, held, Having regard to the amendment to the Negotiable Instruments Act, 1881 Act, brought about by the amending Act 55/2002, and the statement of objects and reasons thereto, with effect from 6.2.2003, whereby Sections 143 to 147 are inserted, recording of a sworn statement by the Magistrate as required under Section 200 Cr.P.C., is not mandatory in respect of the proceedings instituted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The recording of the sworn statement may be dispensed with and the affidavit may be received in lieu of a sworn statement.
NEGOTIABLE INSTRUMENTS ACT, 1881 - Sections 143, 144, 145 & 147: [Mohan M. Shantanagoudar & V. Suri Appa Road, JJ] Overriding effect of the provisions - Interpretation of the non-obstante clause and the expression "as far as possible" used in Section 143 coupled with the non-obstante clause in Section 145 - Held, (a) The provisions of Sections 143, 144, 145 & 147 of the N.I. Act expressly depart from and override the provisions of the Cr.P.C. The provisions of Section 146 of the N.I. Act similarly depart from the Principles of the Evidence Act. Section 143 of the N.I.Act makes it possible for the complainants under Section 138 of the N.I. Act to be tried in the summary manner. Even while following the procedure of summary trials, the non-obstante clause and the expression "as far as possible" used in Section 143 coupled with the non-obstante clause in Section 145 allow for the evidence of the complainant to be given on affidavit, that is, in the absence of the accused. This would have been impermissible even in a summary trial under Cr.P.C., in view of Sections 251 and 254 and especially Section 273 of Cr.P.C., (b) It is clear that 2002 amendment to N.I. Act was intended to prescribe procedure for dispensing with preliminary evidence of the complainant. The Legislature was alarmed by the huge pendency of the cases under Section 138 of the N.I. Act. The law makes identified the stipulation of law that the complainant must be examined under Section 200 of Cr.P.C., at the preliminary stage as one stumbling block to expedite disposal of the complaints under Section 138 of the N.I. Act. With this background, the amendment is brought out to remedy the situation. Thus, the provisions of Sections 143 to 145 of the N.I. Act will have to be read in consonance with the aims and objects of the Legislature. Otherwise the bringing of amendment would be a futile exercise.
Further, There cannot be any dispute that at the stage of Section 200 Cr.P.C., the Court would be applying its mind by considering the matter, based on the material available before it to find out as to whether there are sufficient grounds to proceed against the accused or not. At that stage, the materials available before the Court would be the complaint, sworn statement of the complainant and the documents, if any, furnished by the complainant. The Court would apply its mind to these materials judiciously to decide as to whether further proceedings would be taken or to dismiss the complaint. All these proceedings prior to issuance of process would certainly qualify to be inquiry as defined under Section 2(g) of the Cr.P.C. Under Section 2(g) of Cr.P.C., ’inquiry’ means every inquiry, other than a trial, conducted under the Cr.P.C., by a Magistrate or Court. Upto the stage of 204 Cr.P.C., the trial will not commence. Therefore, all the proceedings up to the stage of Section 204 Cr.P.C., would either fall under the definition of "enquiry" or definition of "other proceedings" as mentioned in Section 145 of the N.I.Act. Even while dismissing the complaint, the Magistrate would judiciously consider the material placed before him and will come to the come to the conclusion. Thus, it is clear that only the material collected during the course of inquiry would be looked into by the Magistrate while issuing the process or while dismissing the complaint. Therefore, it cannot be said that the procedure relating to receiving of the complaint or recording of the sworn statement as the case may be would not come within the ambit of "inquiry", cannot be accepted.
Mohan M. Shantanagoudar, J.
1. The records are placed before this Bench to decide the following question:
“Having regard to the amendment to the 1881 Act, brought about by the amending Act 55/2002, and the statement of objects and reasons thereto, with effect from 6.2.2003, whereby Sections 143 to 147 are inserted, whether the recording of a sworn statement by the Magistrate as required under Section 200 Cr.P.C. in proceedings instituted for an offence punishable under Section 138 of the 1881 Act, would be mandatory and whether the same could either be dispensed with or an affidavit be received in lieu of a sworn statement?
2. The records reveal that the petitioner was tried for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I. Act’ for short). The Trial Court convicted the accused/petitioner and imposed sentence of imprisonment and fine. The order of the Trial Court convicting and sentencing the accused is confirmed by the Lower Appellate Court. The orders of the Courts below are questioned in this Criminal Revision Petition.
During the hearing of Criminal Revision Petition, it appears the Learned Advocate for the accused argued that due to non-recording of the sworn statement of the complainant under Section 200 of Code of Criminal Procedure (‘Cr.P.C.’ for short), entire criminal proceedings vitiate inasmuch as such infirmity goes to the root of the matter since it violates mandatory requirement in law. The Advocate seems to have also contended before the Learned Single Judge that notwithstanding such objection was not raised before the Courts below, the petitioner is not disentitled to raise the same as preliminary ground in Criminal Revision Petition. The sum and substance of the petitioner’s case is that sworn statement of the accused to be recorded under Section 200 of Cr.P.C., cannot be dispensed with by receiving affidavit of the complainant. In the mater on hand, the Trial Court had received the affidavit of the complainant in lieu of recording of his sworn statement under Section 200 of Cr.P.C., and proceeded to issue Process against the accused and thereafter further proceedings have taken place as per law.
Per contra, it seems the complainant’s Advocate contended that the recording of sworn statement can be dispensed with by receiving the affidavit of the complainant. In that context, the Learned Single Judge having noticed conflicting judgments on the subject has referred the matter to larger Bench and hence the papers are placed before us to decide the aforementioned question of law.
3. Learned Advocates Sriyuths Ameet Kumar Deshpande, Amit Mamadapur, Harshavardhana R. Malipatil and R.S. Lagali argued in support of the contention that the recording of the sworn statement under Section 200 of Cr.P.C., is a must and the said procedure cannot be dispensed with by mere receiving the affidavit of the complainant.
Sriyuths Deepak, v. Barad for Veeresh B. Patil, Amaresh S. Roja, Shivanand pattanashetty and Sri Sanjay .A. Patil, Learned Advocates have contended that the affidavit of the complainant can be received in lieu of his sworn statement by dispensing the procedure relating to recording of the sworn statement of the complainant under Section 200 of Cr.P.C.
4. Learned Advocates have drawn the attention of the Courts to various provisions and relied upon the judgments of the Apex Court and various High Courts in support of their respective contentions.
5. Before proceeding further, it would be beneficial to refer to relevant provisions of Cr.P.C., Evidence Act and N.I. Act, which are as under:
Section 200 Cr.P.C.: 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 Magis
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