2010 Supreme(Bom) 431

High Court of Judicature at Bombay
MR. JUSTICE P.B. MAJMUDAR & THE HONOURABLE MR. JUSTICE R.G. KETKAR
Reliance Industries Ltd.
Versus
State of Maharashtra & Others
CRIMINAL APPEAL NOS.287 AND 288 OF 2009
Decided on: 18-03-2010

Headnote:Negotiable Instruments Act, 1881 - Sections 138 and 142 - Criminal Procedure Code, 1973, Sections 2(d), 154 and 200 - Dishonour of cheque - Complaint - Not signed by complainant - Unsigned complaint under Section 138 of Act - Maintainability of - Reference case - Contention, in view of Section 142 of N.I. Act, a complaint under Section 138 of N.I. Act has to be in writing and signed by complainant-holder in due course - And unsigned complaint under Section 138 of N.I. Act not maintainable - Held - Language of Section 142(a) of N.I. Act is plain, unambiguous and clear - Court cannot add anything in that section - Unsigned complaint under Section 138 of N.I. Act maintainable - When such complaint subsequently verified by complainant and process issued by Magistrate after verification, complaint cannot be said "non-entia" - Prosecution of such complaint maintainable. - The submission of ’S’ learned counsel that as a measure of safeguard the complaint has to be signed by the complainant, in opinion, does not consider the importance of signed verification statement of the complainant. If ultimately the prosecution is found to be frivolous or otherwise mala fide, the Court can direct the registration of the case against the complainant for mala fide prosecution of the accused. The accused would also be entitled to file a suit for damages. The verification of the complaint is essential under Section 200 of the Cr PC before taking cognizance of the offence not only with a view to finding out prima facie truth but also identifying the perso, who, in case the prosecution is found to be frivolous or mala fide, would be answerable to the charge of perjury or indemnify the accused. When the complainant gives statement before the Magistrate is support of his complaint, it is implicit that if certain statements are found to be false, then the identity of perjurer is explicitly made clear. So also, if the complaint is found to be malicious and frivolous, then the action for recovering the compensation can be taken against such complainant. The apprehension expressed by ’S’ in judgment, is wholly unfounded. Even, as per Section 190 of Cr PC, the Magistrate may take cognizance of any offence upon receiving a complaint of facts which constitute such offence. It does not lay down that the complaint has to be signed by the complainant. Combined reading of Sections 190 and 200 of the Cr PC and Section 142(a) of the Act, leads to the conclusion that under the Act the complaint can be instituted in writing, however, it need not be signed by the complainant. But the Magistrate taking cognizance shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and such statement is required to be signed by the complainant.

       It is required to be noted that as per Section 2(d) of the Cr PC, a complaint can be either oral or in writing. If the contention of ’S’ is to be accepted, it would mean that wherever complaint is made in writing as per Section 2(d) of the Cr PC, such complaint as per Section 2(d) of the Cr PC, such complaint would not be maintainable and it will have to be rejected once it is found that the same is not signed. It is, therefore, not possible to give such a meaning by adding the word "signature" when the Legislature only contemplated the complaint in writing and not beyond that.

       In the light of the view taken Court respectfully agree with the law laid down by the learned single Judge of Punjab and Haryana High Court in the case of M.S. Shoes East Ltd. (supra) as also judgment of the learned single Judge of the Karnataka High Court in the case of K.M. Maregowda (supra). In so far as the judgment of the learned single Judge of this Court in the case of Roy Joseph (supra) is concerned, in paragraph 10 of the judgment, the learned single Judge reproduced the legal requirements of a valid complaint for the purpose of the Act. After quoting observations of the Apex Court in the case of Sabitha Ramamurthy v. R.B.S. Channabasavaradhya, 2006 (2) Bom CR (Cri) 720 (SC) : 2006 DGLS (soft) 610 : 2006 DGLS (Cri) soft 129 : AIR 2006 SCW 4582, the learned Judge observed as under :

       "The statutory provision requires, therefore, that the complaint must be signed by the complainant and that it shall be verified by the complainant, is, therefore, incomplete and on the basis of such incomplete complaint, no cognizance can be taken under Section 142 of the Negotiable Instruments Act."

       As have already indicated that the language employed in Section 142(a) of the Act is plain, unambiguous and clear, we cannot add anything in that section as observed by the Apex Court in the case of Bhavnagar University (supra). Reliance placed by Mr. Saraogi on the judgments of the Apex Court in thecases of (1) Gujarat Urja Vikas Nigam Ltd. v. Essar Power Ltd., 2008 DGLS (soft) 347 : 2008 (4) SCC 755 and (2) O.S. Singh v. Union of India, 1995 DGLS (soft) 946 : 1996 (7) SCC 37, is, therefore, misplaced. Accordingly, answer point No. 1 in the affirmative. It is held that the complaint under Section 138 of the Act is maintainable. When such complaint is subsequently verified by the complainant and the process is issued by the Magistrate after verification, it cannot be said that the said complaint is "non entia " and the prosecution of such complaint, in view, therefore, is maintainable. Since the answer to point No. 1 is affirmative it is not necessary to decide point No. 2.