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2007 (3) Crimes 551 (Bom.)
BOMBAY HIGH COURT
(Nagpur Bench)
K.J. Rohee & S.R. Dongaonkar, JJ.
Maharaja Developers & Anr. —Applicants
versus
Udaysingh S/o. Pratapsinghrao
Bhonsle & Anr. —Respondents
Criminal Application No. 2962 of 2006
Decided on 28-2-2007
Held: That the non-obstante clause in Section 142 of the N.I. Act does not relieve the Magistrate of his duty to examine the complainant and his witnesses on oath under Section 200 of Cr.P.C. It, therefore, follows that and the provisions of Section 200 of Cr.P.C would continue to control the inquiry or trial of an offence punishable under Section 138 of the N.I. Act. (Para 23)
The subordinate Courts are required to follow the mandate of Section 200 of Cr.P.C. in respect of the complaints filed under Section 138 of the N.I. Act even though there is a solemn affirmation by the complainant. (Para 30)
(ii) Negotiable Instruments Act, Sections 142 and 145 — Taking cognizance of an offence u/s.138 r/w Cr.P.C, Sections 4, 4(2), 5, 195, 200 to 202— Whether the provisions of Sections 142 and 145 of the N.I. Act which is special enactment dispenses with the said requirement of Section 200 of Cr.P.C — Held, we are of the considered view that the non-obstante clause in Section 142 or Section 145 of the N.I. Act does not override the provisions of Section 200 of Cr.P.C. and it is mandatory for the Magistrate to examine the complainant who has filed the same under Section 138 of the N.I. Act though with an affirmation as regards truthfulness of the contents of the complaint—It, therefore, follows that the Magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under Section 204 of Cr. P. C. though there is a solemn affirmation at the foot of the complaint by the complainant. (Para 27)
(iii) Interpretation of Statutes: If a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised, it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.
Facts of the Case:
It so happened that H.H. Maharaja Udaysingh Bhonsle s/o late H.H. Maharaja Pratapsinghrao Bhonsle resident of Junior Bhonsla Palace, Mahal, Nagpur ( hereinafter referred to as .the complainant) filed a complaint in writing on 21.4.2006 against Maharaja Developers and Vijay Tulsiramji Dangre (hereinafter referred to as .the accused) under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act) on account of dishonour of cheques issued by the accused in favour of the complainant and his sister. The said complaint contained a solemn affirmation by the complainant at the foot of it. The complainant also filed certain documents along with the complaint. On perusal of the complaint and the documents filed with it, the learned Magistrate was satisfied that there was prima facie case to proceed against the accused. Hence by order dated 28.4.2006 he directed issuance of process against the accused under Section 204 of Cr. P. C. for the offence punishable under Section 138 of the N.I. Act.
The accused challenged the order of issuance of process by preferring Criminal Revision No.624/2006 on the ground amongst others that there was no proper inquiry into the complaint as laid down in Section 200 to 202 of Cr. P. C. (Chapter XV), that there was no verification of the complaint by the Magistrate and the issuance of process was erroneous. The learned 3rd Ad hoc Additional Sessions Judge rejected the revision by order dated 24.8.2006. Having been aggrieved by the said order, the accused moved an application under Section 482 of the Cr.P.C. for quashing the complaint as well as the order of the Magistrate dated 28.4.2006 for issuance of process and the order of Revisional Court dated 24.8.2006 rejecting the revision.
Mr.Manohar, learned counsel for the accused submitted that it is duty cast on the Magistrate by Section 200 of the Cr.P.C. to examine upon oath the complainant and his witnesses before dismissing the complaint under Section 203 of the Cr.P.C. or before issuing of process under Section 204 of Cr.P.C.
Mr. Sharif, Advocate for Respondent No.1 on the other hand submitted that the provisions of Section 142 and 145 of the N.I. Act override the provisions of Section 200 of Cr.P.C. and no fault can be found with if the Magistrate does not examine the complainant and his witnesses on oath under Section 200 of Cr.P.C. and relies on solemn affirmation of the complainant below complaint before issuance of process under Section 204 of the Cr.P.C.
In reply to the contentions of Respondent No.1, learned counsel for the accused submitted that Section 142 of the N.I. Act does not exclude examination of the complainant and his witnesses on oath under Section 200 of the Cr.P.C. He submitted that Section 145 of the N.I. Act refers to evidence of the complainant on affidavit which does not relate to the stage before issuance of process under Section 204 Cr.P.C. Mr. Manohar submitted that a specific reference was required to be made in those sections about dispensing with the examination of the complainant and his witnesses on oath by the Magistrate. In the absence of it, it cannot be said that the provisions of N.I. Act would override the provisions of Section 200 of Cr.P.C.
Findings of the Court: That the non-obstante clause in Section 142 of the N.I. Act does not relieve the Magistrate of his duty to examine the complainant and his witnesses on oath under Section 200 of Cr.P.C. It, therefore, follows that and the provisions of Section 200 of Cr.P.C would continue to control the inquiry or trial of an offence punishable under Section 138 of the N.I. Act.
The subordinate Courts are required to follow the mandate of Section 200 of Cr.P.C. in respect of the complaints filed under Section 138 of the N.I. Act even though there is a solemn affirmation by the complainant.
Result: Reference admitted.
ORDER
K. J. Rohee, J.—The issue which has been referred to this Bench is, “Is it mandatory for the Magistrate to examine the complainant who has filed complaint under Section 138 of Negotiable Instruments Act with affirmation as regards truthfulness of the facts mentioned in the complaint before issue of process under Section 200 of Cr.P.C.?”
2. It so happened that H.H. Maharaja Udaysingh Bhonsle s/o late H.H. Maharaja Pratapsinghrao Bhonsle resident of Junior Bhonsla Palace, Mahal, Nagpur ( hereinafter referred to as the complainant) filed a complaint in writing on 21.4.2006 against Maharaja Developers and Vijay Tulsiramji Dangre (hereinafter referred to as the accused) under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the N.I. Act.) on account of dishonour of cheques issued by the accused in favour of the complainant and his sister. The said complaint contained a solemn affirmation by the complainant at the foot of it. The complainant also filed certain documents along with the complaint. On perusal of the complaint and the documents filed with it, the learned Magistrate was satisfied that there was prima facie case to proceed against the accused. Hence by order dated 28.4.2006 he directed issuance of process against the accused under Section 204 of Cr. P. C. for the offence punishable under Section 138 of the N.I. Act.
3. The accused challenged the order of issuance of process by preferring Criminal Revision No.624/2006 on the ground amongst others that there was no proper inquiry into the complaint as laid down in Section 200 to 202 of Cr. P. C. (Chapter XV), that there was no verification of the complaint by the Magistrate and the issuance of process was erroneous. The learned 3rd Ad hoc Additional Sessions Judge rejected the revision by order dated 24.8.2006.
4. Having been aggrieved by the said order, the accused moved an application under Section 482 of the Cr.P.C. for quashing the complaint as well as the order of the Magistrate dated 28.4.2006 for issuance of process and the order of Revisional Court dated 24.8.2006 rejecting the revision.
5. The said matter was heard by one of us (Justice S.R. Dongaonkar). The learned Single Judge found that there appears to be conflict of views about the legal position with regard to necessity of recording verification statement of the complainant by the Magistrate when the complaint under Section 138 of the N.I. Act is filed with affirmation in two Single Bench decisions viz. Mamatadevi Prafullakumar Bhansali v. Pushpadevi Kailashkumar Agrawal1 and M/s Nova Electricals, Jalgaon v. State of Maharashtra and Anr.2 It was brought to the notice of the learned Single Judge that on the basis of the judgment in Mamatadevi’s case, the subordinate Courts are accepting the affidavits of the complainants in lieu of verification statement and are issuing process against accused. The said procedure is inconsistent with the decision in M/s Nova Electricals. Thus there would be confusion in the subordinate Courts as to what procedure should be followed. In order to avoid further confusion regarding legal position, the reference as above was made to the larger Bench.
6. We have heard Mr. Sunil Manohar, Advocate for the accused and Mr. Masood Sharif, Advocate for the complainant at length.
7. Mr. Manohar, the learned counsel for the accused, submitted that Section 190 in Chapter XIV of the Cr.P.C. deals with the cognizance of offences by Magistrates whereas Chapter XV deals with the procedure to be adopted in case of complaints to Magistrates. Section 190 of Cr.P.C. mentions three modes of taking cognizance of offence by Magistrate. Section 200 of Cr.P.C. casts a duty on the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present, if any, to reduce the substance of such examination to writing and to sign such substance. The proviso to Section 200, however, provides that when a complaint is in writing, the M
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