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2006(1) Bankmann 64
ORISSA HIGH COURT
A. K. Parichha, J.
Susanta Kumar Moharana — Appellant
versus
Ramesh Kumar Bhatta — Respondent
Crl MC No 2602 of 2004
Decided on 11.5.2005
Held: The intention behind incorporation of these two sections can be understood if they are read conjointly with Sections 143 to 144 of the said Act. Sections 143 of the N.I. Act mandates summary trial for all offences under Chapter XVII of the Act so that quick disposal of the case can be achieved on the payee of the cheque would get early justice. Keeping such aim in view, Section 144, of the said Act was incorporated for quick service of summons and Section 145 of the said Act was incorporated for taking evidence on affidavit. A close reading of these sections would reveal that they relate to post cognizance operation and never treat to the pre-cognizance stages. Moreover, the provisions of Sections 145 and 146 of N.I. Act are not mandatory in nature and option has been left open for the parties to take recourse to these provisions or to the normal provisions contemplated under the Cr.P.C. The language of Sections 142 to 146 of the N.I. Act, rather, the language indicate that the provisions of Cr.P.C. are to be harmoniously read with the procedure laid down in Sections 142 to 146, of the N.I. Act. (Para 7)
(ii) Negotiable Instruments Act, 1881 — Section 138 — Criminal Procedure Code, 1973—Section 200—Petition to quash cognizance and summoning order in complaint on ground that statement of complainant u/s. 200 Cr.P.C. did not reveal essential ingredients particularly demand notice served and when—Whether statement of complainant is to be read conjointly with complaint petition while deciding the issue of cognizance? Yes.
Held: Now the question is whether the statement of the complainant recording under Section 200, Cr.P.C. is to be read alone for the purpose of Sections 203 or 204, Cr.P.C. or whether such statement is to be read conjointly with the complaint petition. Section 200, Cr.P.C. clearly says that a Magistrate has to examine the complainant and record the substance of such examination in writing. It does not say that the entries statement of the complainant in verbatim is to be recorded. The examination of the complainant under Section 200, Cr.P.C. is basically for the purpose of ascertaining prima facie truth of the allegations made in the complaint petition. So, the substance of the statement recorded under Section 200, Cr.P.C. cannot be read in isolation from the complaint petition.
(Para 11)
Result: Petition dismissed.
A.K. Parichha, J. —Opp. Party as complainant has filed I.C.C. Case No. 113 of 2004 before the Learned S.D.J.M., Nayagarh alleging offence under Section 138 of the Negotiable Instruments Act (in short, “the N.I. Act”) against the petitioner. Learned S.D.J.M., Nayagarh after recording statements of the complainant under Section 200 Cr.P.C. took cognizance of that offence and directed issue of process against the petitioner. Aggrieved, the petitioner has filed the present application under Section 482 of the Cr.P.C. for quashing the said Order dated 27.9.2004 passed by the learned S.D.J.M., Nayagarh.
2. Mr.J. Katikia, Learned counsel for the petitioner submitted that the impugned Order of cognizance is unsustainable as the statement of the complainant recorded under Section 200, Cr.P.C. does not reveal the essential ingredients of the offence under Section 138 of the N.I. Act. According to him, unless prima facie case is revealed from the statements of the complaint and witnesses recorded under Section 200 and 202, Cr.P.C. cognizance of the offence cannot be taken even though allegations are borne on the complaint petition. In support of his contention he relied on the decisions in N .Harihar Iyer v. State of Kerala1; Nelson Motis v. Union of India and another2; State of Uttar Pradesh v. Union of India and another3; Commissioner of Agricultural Income-tax, West Bengal v. Keshab Chandra4; S.A. Najundeswara v. Varlak Agrotech (P) Ltd.5. He also submitted that the Order of cognizance is otherwise bad in law because of non service of statutory notice on the petitioner under Section 138(b) of the N.I. Act and in this regard relied on the case of V. Rajakumari v. P. Subbrarama Naidu and another6.
3. Mr. B.N. Mohanty, Learned Counsel for opp. party, on the other hand, submitted that in view of Sections 145 & 146 of the N.I. Act, recording of statement of the complainant under Section 200, Cr.P.C. is not mandatory and that the existence of prima facie case for the offence under Section 138 of the N.I. Act can determined from the contents of the complaint petition and documents. He submitted that Section 200, Cr.P.C. simply contemplates for recording of the summary of the initial statement made by the complainant and such summary recorded is to be read with the contents of the complainant petition to find out as to whether prima facie case for the alleged offence has been made out. In support of this contention he relied on the cases of S.A. Najundeswara v. Varlak Agrotech. (P) Ltd. (Supra); Prafulla Kumar Samal alias Prafulla Samal and others v. State of Orissa and another7, Mr. Mohanty further submitted that the issue relating to proper service of notice under Section 138(b) of the N.I. Act is not required to be decided at the preliminary stage of the case, but it is to be decided at the stage of trial. It is also contended that the opp. party mentioned categorically in the complaint petition that the notice was sent to the petitioner by Regd. Post and A.D. was also received back after due service on the petitioner and in the face of such clear averments cognizance of offence under Section 138, N.I. Act cannot be refused simply because the fact of such service of notice is not specifically noted in the summary of the statement of the complainant recorded under Section 200, Cr.P.C. In this regard, Mr. Mohanty relied on Biswaranjan Pattnaik v. Tee, Finance Company Ltd.8 Represented by its Managing Director Bhubaneswar; Subrata Kumar Dash v. Pradeep Kumar Ram9; K.Bhaskaran v. Sankaran Vaidhyan Balan and another.10
4. From the rival submissions of the Learned Counsel for respective parties the following three points emerge for examination:
(i) Whether the recording of statement of the complainant under Section 200, Cr.P.C. is mandatory after incorporation of Section 145 and 146 of the N.I. Act?
(ii)Whether the statement of the complainant recorded under Section 200, Cr.P.C. is to be read conjointly with the complaint petition while
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