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BOMBAY HIGH COURT
K.J. Rohee and S.R. Dongoankar, JJ.
Maharaja Developers & Anr. —Petitioners
versus
Udaysingh Pratap Singh Bhonsale
& Anr. —Respondents
Crl. Application No. 2962 of 2006
Decided on 28-2-2007.
Counsel for the Parties:
For the Petitioners:Sunil V. Manohar, Advocate.
For the Respondent No. 1:Masood Shariff, Advocate.
For the Respondent No. 2: Yogesh B. Mandpe, APP.
IMPORTANT POINT
It is mandatory for Magistrate to examine complainant who has filed complaint u/s 138 of N.I. Act though with affirmation as regards and truthfulness of contents of complaint.
Headnote:Negotiable Instruments Act, 1881—Section 138 & 145—Criminal Procedure Code, 1973—Section 200 and 2002—Complaint for offence of dishonour of cheque—Complaint contained solemn affirmation by complainant foot of it—Magistrate took cognizance & issued summoning process against petitioner accused—Petition challenging the order on ground that there was no proper inquiry into complaint as provided in Section 200 to 2002 Cr.PC—Was if mandatory for Magistrate to examine complainant with affirmation as regards fullness of foots mentioned in complaint before issue of process u/s 204 Cr.PC? Yes.
Held: Thus it would be seen 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 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 25)
From the above discussion, we are of the considered view that the non-obstante clause in Section 142 or 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 29)
The reference is accordingly answered in the affirmative.
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 31)
Result: Petition allowed.
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 28-40-2006 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 Sections 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 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 Electrical. 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 pr
