2011(1) Bankmann 475 (Bom.)
BOMBAY HIGH COURT
Mohit S. Shah, CJ., and V.M. Kanade and R.P. Sondurbaldota, JJ.
Rajesh Bhalchandra Chalke —Petitioner
versus
State of Maharashtra —Respondent
Criminal Writ Petition No. 2523 of 2010 alongwith Criminal Application No. 3478 of 2010
Decided on 7.12.2010

IMPORTANT POINT
Magistrate is not bound to call upon complainant to remain present before Court and to examine him upon oath for taking decision whether or not to issue process on complaint under Section 138 of NI Act.

Headnote:(i) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque— Section 138 was introduced in public interest to enhance faith in efficacy of banking operations of negotiable instruments—This object can be achieved by punishing unscrupulous persons who issue cheques without really intending to discharge their liability—At the same time, Section 138 provides adequate safeguard by giving opportunity to honest drawer for his lapse induced by inadvertent or negligence by permitting him to pay the amount within prescribed limit. (Para 23)

       (ii) Criminal Procedure Code, 1973—Sections 145 and 200—Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—In complaints under Section 138 of NI Act, interpretation of Section 200 Cr.P.C has to be controlled by Section 145 of NI Act—Evidence of complainant may be given by him on affidavit and, subject to all just exceptions, may be read in evidence in any enquiry, trial or other proceeding under the Cr.P.C.— Section 145 is all comprehensive and permits complainant to submit on affidavit what he would have otherwise been required to state before Magistrate in course of examination upon oath under Section 200 of Cr.P.C. (Paras 26 and 27)

       (iii) Criminal Procedure Code, 1973—Sections 145 and 200—Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Magistrate has discretion to decide whether to rely on affidavit given by complainant in support of complaint and on documents and issue process on the basis thereof or to summon and examine complainant on oath as to facts contained in affidavit—This, however, does not mean that in each and every case Magistrate is bound to call complainant and examine him on oath before issuing process. (Para 29)

       (iv) Indian Evidence Act, 1872—Sections 3 and 137—Criminal Procedure Code, 1973—Sections 145 and 200—Negotiable Instruments Act, 1881—Sections 138 and 145—Dishonour of cheque—Evidence as defined by Evidence Act is not confined to examination-in-chief, cross-examination or re-examination of a witness under Section 137—Evidence means and includes all statements which Court permits or requires to make before it in relation to matters of fact under enquiry—As per provisions of Section 145 of NI Act added by Amending Act 55 of 2002, statement which Court would require complainant to make before it for the purpose of enabling Court to decide whether or not to issue process under Section 200 of Cr.P.C is also “evidence” as contemplated by sub-section (1) of Section 145 of NI Act. (Paras 30 to 33)

       (v) Interpretation of Statute—Principle—A statutory provision is not to be interpreted in such a manner as to yield absurd results—All that Magistrate is required to consider while considering whether or not to issue process on a complaint under Section 139 of NI Act is to ascertain whether complainant has made out a prima facie case—It would be absurd if, on the basis of affidavit of complainant submitted after issuance of process, accused can be convicted and sentenced to imprisonment upto one year in a summary trial, but on the basis of an affidavit in support of complain, Magistrate cannot even say that complainant has made out a prima facie case for issuance of process. (Para 34)

       (vi) Negotiable Instruments Act, 1881—Sections 138 and 145—Criminal Procedure Code, 1973—Section 200—Dishonour of cheque—Once complainant files an affidavit in support of complaint before issuance of process under Section 200 Cr.P.C, it is thereafter open to Magistrate, to call upon complainant to remain present and to examine him as to facts contained in affidavit submitted by complainant in support of his complaint—But, Magistrate is not bound to call upon complainant to remain present before Court and to examine him upon oath for taking decision whether or not to issue process on complaint under Section 138 of NI Act. (Para 36)

       (vii) Statute Law—Overriding effect—Ordinarily , provisions of a subsequently enacted special legislation with non-obstante clause would prevail over provisions of a previously enacted general law. (Para 53)

       (viii) Negotiable Instruments Act, 1881—Sections 138—Criminal Procedure Code, 1973—Section 200—Dishonour of cheque—For the purpose of issuing process under Section 200, it is open to Magistrate to rely upon verification in the form of affidavit filed by complainant in support of complaint under Section 138—Magistrate is not obliged to call upon complainant to remain present before Court, nor to examine complainant or his witnesses upon oath for taking decision whether or not to issue process on complaint under Section 138—It is only if and where Magistrate, after considering complaint under Section 138 and documents produced in support thereof and verification in the form of affidavit of complainant, is of the view that examination of complainant or his witness is required, that Magistrate may call upon complainant to remain present before Court and examine complainant and/or his witness upon oath for taking decision whether or not to issue process on complaint under Section 138. (Para 59)

       (ix) Negotiable Instruments Act, 1881—Sections 138—Dishonour of cheque—There is nothing wrong in complainant under Section 138 filing affidavit in support of complaint in a format indicating all essential facts satisfying ingredients of Section 138 for the purpose of enabling Magistrate to decide whether or not to issue process on complaint under Section 138. (Para 59)