Back
2011(2) Bankmann 408 (Raj.)
RAJASTHAN HIGH COURT
Dr. Vineet Kothari, J.
Man Mohan Singh & Ors —Petitioners
versus
M/s Ankur Enterprises —Respondent
S.B. Crl. Miscellaneous Petitioner Nos. 367 to 375 of 2011
Decided on 17-5-2011
Counsel for the Parties:
For the Petitioners:Mr. Manoj Bhandari, Advocate.
For the Respondent:Mr. Akhilesh Rajpurohit, Advocate.
IMPORTANT POINT
Examination of the complainant on oath as per Section 200 Criminal Procedure Code cannot be insisted upon over and above the provisions of Section 145 (1) of the Act.
Headnote:Negotiable Instruments Act, 1881— Section 145—Summoning order for offence of dishonour of cheque —Whether trial court could not have taken cognizance on complaint merely on basis of affidavit filed along with complaint without examining complainant & recording his statement on oath under Section 200 Criminal Procedure Code? No.
Held:Having heard the learned counsels and upon perusal of the legal position cited above, this court respectfully disagrees with the earlier view of coordinate bench of this Court in the case of Prakash Chand v. State of Raj. (supra) and tends to agree with the later view of this court in the case of Rakesh Sharma v. State of Raj. (supra) which has been rendered following the Supreme Court decision ion M/s Mandvi Co-op Bank Ltd. v. Nimesh B. Thakore (supra) and is inclined to hold that Section 145 (1) of Negotiable Instruments Act, which is a non obstante provisions cannot be dissected into two different stages, namely ; pre summoning stage of trial and post summoning stage of trial. The clear and unambiguous meaning of the non obstante clause contained in Section 145(1) of the Act is that wherever the repugnancy or conflict arises while applying the provisions of Criminal Procedure Code the provisions of Negotiable Instruments Act would prevail. Since Section 143 of the Negotiable Instruments Act provides for summary trial of complaint cases under Section 138 and 143 of the Act, it cannot be contended that examination of complainant as per provisions of Section 200 Criminal Procedure Code would still be required even if the complainant has filed affidavit in support of his complaint at pre-summoning stage and it cannot equally be contended that the cognizance taken by the learned Magistrate against the accused on the basis of such complaint and affidavit would be unsustainable in view of non compliance with the provisions of Section 200 Criminal Procedure Code Section 145 (1) of Negotiable Instruments Act, clearly permits the evidence of the complainant to be given in the form of affidavit the compliance to that extent of examination-in-chief in the form of affidavit is deemed to have been made in the provisions of Section 145 (1) of the act and examination of the complainant on oath as per Section 200 Criminal Procedure Code cannot be insisted upon over and above the provisions of Section 145 (1) of the Act. Subsection (2) of Section 145 of the Negotiable Instruments Act clearly permits the accused or the prosecution to apply to the Court concerned for cross examination of the complainant or any other witness, who has given such affidavit in support of the complaint for his cross examination. Therefore, it cannot be said that accused is left remediless in the matter and Section 145 (2) of the Negotiable Instruments Act, adequately safeguards his interest and, therefore, non-examination of the complainant under Section 200 Criminal Procedure Code before taking cognizance of the offence under Section 138 of Negotiable Instruments Act cannot be said to be fatal for taking cognizance by the learned Magistrate as has been done in the present cases. (Para 6)
Vineet Kothari J.— The present miscellaneous petitions under Section 482 Criminal Procedure Code are directed against the order dated 14/1/2011 passed by the revisional court dismissing the revisions petitions of the accused petitioner against the order passed by the learned trial court by which the application under Section 203 Criminal Procedure Code dated 28/5/2010 was rejected by the learned trial court on 27/9/2010.
2. Learned counsel for the petitioner, Mr. Manoj Bhandari relying upon the decision of a Coordinate bench of this court dated 22/7/2009 in the case of Prakash Chand v. State of Raj, & Anr.1 submitted that the learned trial court could not have taken cognizance on the complaint filed by the respondent complainant M/s Ankur Enterprises under Section 138 of Negotiable Instruments Act merely on the basis of affidavit filed along with the complaint without examining the complainant and recording his statements on oath under Section 200 Criminal Procedure Code & learned court below has erred in rejecting the revision petition filed by the accused petitioner. The relevant portion of the judgment of coordinate bench of this court in the case of Prakash Chand v. State of Raj. & Anr. (supra) is reproduced below for ready reference:
“15. Further it is to be seen as to whether the provisions of Section 142 and 145 of the Negotiable Instruments Act override the provisions of section 200 Criminal Procedure Code. It may be noted that Section 142 of the Negotiable Instruments Act does not exclude the examination of the complainant and witnesses on oath under Section 200 Cr.P.C. Section 145 of the Negotiable Instruments Act refers to evidence of the complainant on affidavit which does not relate to the stage before issuance of process under Section 204 Criminal Procedure Code. A specific reference was required to be made in these Sections for dispensing with the examination of the complainant and his witnesses on oath by the Magistrate. In absence of it, it cannot be said that the provisions of the Negotiable Instruments Act would override the provisions of Section 200 Criminal Procedure Code.
17. for the reasons given hereinabove, it is concluded that Section 142 and 145 of the Negotiable Instruments Act do 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 complaint under Section 138 of the Negotiable Instruments Act. The Magistrate is obliged and duty bound to examine the complainant and his witnesses upon oath before issuance of process under Section 204 Criminal Procedure Code. Such examination would not take much time if the statement of the complainant is recorded on the same day on which the complaint is filed or on the following day when the matter is fixed. In any case, the procedure laid down by law has to be followed and the same cannot be deviated on the ground of delay in disposing a complaint under the Negotiable Instruments Act.
Therefore, I am of the considered opinion that the procedure of examining complainant and all his witnesses present, if any, on a complaint filed under Section 190 Criminal Procedure Code is the basic procedure given under the code of criminal procedure. Therefore, the complainant should have been examined before proceeding to take cognizance even in the present case.
18. Consequently this criminal Miscellaneous petition is allowed and the impugned orders dated 18.7.2007 and 13.5.2009 are hereby quashed and set aside.”
3. On the other hand, learned counsel for the complainant, Mr. Akhilesh Rajpurohit relied upon the later view of another coordinate bench of this court in the case of Rakesh Sharma v. State of Rajasthan and Anr., 2110 (3) WLC 191 decided on 2/4/2010 in which distinguishing the aforesaid view in the case of Prakash Chand (supra) and holding it to be per-in-curium, another learned single judge of this court relying upon the Supreme Court decision in the case of M/s Mandvi Co-op.
