2005(1) Bankmann 349
KERALA HIGH COURT
R. Basant, J.
Vasudevan — Petitioner
versus
State of Kerala — Respondent
C.R.P. No. 1365 of 2004
Decided on 24.6.2004

IMPORTANT POINT
Under Section 145(1) of the Negotiable Instruments ordinarily it is imperative that the Criminal Court must receive affidavits as evidence at the stage of Section 200 Cr.P.C. 1973 and should not insist on personal appearance and examination of the complainant to give sworn statement.

Headnote:(i) Cr. P.C. 1973—Sections 200, 203 and 482—Negotiable Instruments Act, 1881—Section 138—Complaint under Section 138—Magistrate taking cognizance—Making order complainant absent—It appears complainant is not interested to proceed with the case. The criminal M.P. closed.”—Whether needs interference. (Yes)

       Held: The learned counsel for the petitioner first of all contends that a criminal complaint cannot be disposed of with an order like the one extracted above. The Code of Criminal Procedure speaks of termination of a complaint at the stage of 203 Cr. P.C. by dismissal. It does not permit closure of complaint, submits the counsel. I do agree with the learned counsel for the petitioner. The order that the complaint is closed at that stage cannot be said to be one having legal sanction. The impugned order, for that reason itself, warrants interference. (Para 3)

       In the result

       a) This revision petition is allowed.

       b) The impugned order is set aside,

       c) The learned Magistrate is directed to consider the complaint and the affidavit filed by the complainant under Section 145 of the Negotiable Instruments Act and decide whether an order under Section 203 or 204 Cr .P .C. should be passed. (Para 20)

       (ii) Cr. P.C., 1973—Sections 200 and 2(g)—Negotiable Instruments Act, 1881—Sections 138, 142 and 145—Is the proceeding under Section 200 Cr.P.C. “inquiry” as defined under Section 2)(g) Cr.P.C.? (Yes)—Is the sworn statement recorded before the Magistrate under Section 200 Cr.P.C. ‘evidence” under Section 3 of Evidence Act, 1872? (Yes)—Can the evidence filed under Section 145 be received by Court to proceed further without insisting personal appearance of the complainant for his sworn statement? (Yes).

       Held: Going by the first principles also, at the stage of Section 200 Cr. P.C., the Court is only considering on the basis of the materials available before it, whether there are sufficient grounds to proceed against the accused. Materials are available before the Court. The complaint is available. Sworn statement of the complainant and witnesses are available. Mind of the Court is applied to these materials judicially to decide whether the matter deserves to be proceeded with further by issue of process under Section 204 Cr. P.C. or whether proceedings deserve to be terminated by dismissal of the complaint under Section 203 Cr. P.C. In any view of the matter, the proceedings before the Criminal Court at that stage would certainly qualify to be “inquiry” as defined under Section 2(g). Under Section 2(g), inquiry means every inquiry, other than trial, conducted under this Code by a Magistrate or Court. In this view of the matter, the proceedings before the Magistrate under Section 200 Cr. P.C. whereunder the Magistrate considers the materials available before him to decide whether a judicial order of dismissal under Section 203 Cr. P.C. or a judicial order of issue of process under Section 204 Cr. P.C. should be passed, would certainly be inquiry under Section 2(g). The objection raised that Section 145 of the Negotiable Instruments Act cannot apply for the reason that the proceedings is not inquiry, cannot hence be accepted. (Para 11)

       Held also: Thus, it follows from the above discussions that the proceedings before the Criminal Court at a stage prior to Section 203/204 Cr. P.C. will be inquiry. The statement of a complainant to be recorded under Section 200 Cr. P.C. will be evidence. In these circumstances, Section 145 of the Negotiable Instruments Act squarely applies and it will be permissible for the Court to receive the affidavit filed under Section 145, of the Negotiable Instruments Act at the stage of Section 200 Cr.P.C. and to act upon the same. It is unnecessary ordinarily to insist on personal appearance of the complainant to tender the sworn statement at that stage. Para 16)

       Held consequently: It follows from the above discussions that the learned Magistrate was wrong in closing the complaint without accepting the affidavit filed by the complainant and without considering the same to decide whether an order under Section 203 or 204 Cr.P.C. should be passed. The impugned order does, certainly warrant interference. (Para 19)

       Result: Petition allowed. Case remanded.