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CHHATTISGARH HIGH COURT
Goutam Bhaduri, J.
Sarita Shriwas —Applicant
versus
Rajini Khatri —Respondent
Criminal M.P. No. 513 of 2013
Decided on 7.2.2014
Counsel for the Parties:
For the Applicant:Mr.Sharwan Agarwal, Advocate
For the Respondent:Mr.K.K.Dwangan, Advocate
IMPORTANT POINT
In cases relating to dishonour of cheques, evidence can be given on the basis of an affidavit when the complaint is filed u/s 138 of the Negotiable Instruments Act, that shall be subject to just exception.
Headnote:Negotiable Instruments Act, 1881—Sections 138 and 145—Evidence on affidavit—Evidence can be given by way of affidavit subject to all just exceptions—Respondent complainant had filed a complaint on ground that the cheque worth Rs.90,000 was dishonoured for want of money—Complainant along with his memo of complaint under Section 138 of the Act had already attached on affidavit—Cognizance was taken for offence under Section 138 of the Act—Accused filed preliminary objection about the very taking of the cognizance alleging that the complainant was not examined on oath before the Court under Section 200 CrPC—Whether evidence of complainant could be recorded on bases of the affidavit attached with the complaint Yes.
Held: Therefore, Section 145(1) of the Negotiable Instruments Act postulates that the evidence can be given by way of affidavit subject to all just exceptions. The matter came up for consideration before the Hon’ble the Supreme Court in case of Mandvi Co-operative Bank Ltd. V. Nimesh B.Thakore, reported in 2010(3) SCC 83: AIR 2010 SC 1402 wherein Hon’ble the Supreme Court laid down the law that Section 145 of N.I. Act starts with the word non-obstante clause. Further Sections 143 to 147 of the N.I. Act lays down a kind of special Code for the trial of offences under Chapter XVII 17 of the N.I. Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and process in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure as expeditious as possible without in any way compromising on the right of the accused for a fair trial.
The plain reading of section 145 would go to show that the very use of words “just exception” makes it clear that if the evidence is adduced by the complainant without entering into witness box for examination-in-chief then in such case, the inadmissible part in the affidavit has to be excluded from the evidence. The section itself denotes that the notice given on affidavit is subject to all just exceptions. It simply means that the evidence given on affidavit must be admissible and it must not include inadmissible material such as facts not relevant to the issue or any hearsay matters and it is always open to the accused to point out to the Court the inadmissible and objectionable part wherein the Court shall be duty bound to decide it. The evidence adduced by the complainant on affidavit makes a formal proof of the enclosed document wherein the accused can raise all objections with respect to validity and sufficiency of the proof of the document submitted along-with affidavit.
Section 143 gives the Court the power to try the cases summarily. Section 144 provides for the mode of service of summon and Section 145 made it possible for the complainant to give his complaint on affidavit. Therefore, Section 145 expressly depart from and over ride the provisions of the Code of Criminal Procedure, the main body of adjective law for criminal trials. Therefore, Section 145 with its non-obstante clause make it possible for the evidence of the complainant to be taken in absence of the accused. But the affidavit of the complainant may be read in evidence subject to all just exceptions. In other words, anything inadmissible in evidence or irrelevant fact or hearsay matter would not be taken in evidence even though taken on affidavit. Hon’ble the Supreme Court further in case of Mandvi Co-operative Bank Ltd. (supra) held thus in paras 34:
“33. We are completely unable to appreciate the submission. The plea for a literal interpretation of Section 145(2) is based on the unfounded assumption that the language of the Section clearly says that the person giving his evidence on affidavit, on being summoned at the instance of the accused must start his deposition in court with examination-in-chief. We find nothing in Section 145 (2) to suggest that, we may also make it clear that Section 137 of the Evidence Act does not define ‘examine’ to mean and include the three kinds of examination of a witness; it simply defines examination-in-chief, ‘cross-examination’ and ‘re-examination’. What Section 145 (2) of the Act says, is simply this. The court may, at its discretion, call a person giving his evidence on affidavit and examine him as to the facts contained therein. But if an application is made either by the prosecution or by the accused the court must call the person giving his evidence on affidavit, again to be examined as to the facts contained therein. What would be the extent and nature of examination in each case is a different matter and that has to be reasonably construed in the light of the provision of Section 145 (1) and having regard to the object and purpose of the entire scheme of Sections 143 to 146. The scheme of Sections 143 to 146 does not in any way affect the Judge’s powers under Section 165 of the Evidence Act
34. As a matter of fact, section 145(2) expressly provides that the court may, if it thinks fit, summon and examine any person giving evidence on affidavit. But how would the person giving evidence on affidavit be examined, on being summoned to appear before the court on the application made by the prosecution or the accused? The affidavit of the person so summoned that is already on the record is obviously in the nature of examination-in-chief. Hence, on being summoned on the application made by the accused the deponent of the affidavit (the complainant or any of his witnesses) can only be subjected to cross-examination as to the facts stated in the affidavit.”
Further reading of Section 145 would make it clear that it starts with non- obstante clause with respect of the Code of Criminal Procedure and it postulates that the evidence of the complainant may be given on affidavit but the affidavit of the complainant may be read in evidence in any enquiry or the trial or other proceeding “subject to, all just exceptions”. Therefore harmonious reading of this Section with respect to the provisions of the Indian Evidence Act would construe that the evidence given must be admissible and may not include inadmissible matters. Hence, interpretation of Section 145 makes it clear that it will apply to a limited part while adducing evidence with respect to filing of the complaint qua criminal procedure code from Sections 200 to 203 and not beyond.
Further the section only confines it to the complaints which are filed under Section 138 of the N.I. Act, therefore, the non-obstante clause, in the opinion of this Court, is an enactment subject to the supplement to an earlier enactment which was made, by the amendment introduced in the year 2002 in the N.I. Act. The object of such amendment was brought for an early disposal of the case relating to the dishonour of cheques. Therefore, a conjoint reading would make it clear that the evidence can be given on the basis of an affidavit when the complaint is filed under Section 138 ofN.I. Act, that shall be subject to ‘just exception’. (Paras 12 to 16)
(ii) Negotiable Instruments Act, 1881—Section 138—Dishonour of cheque—Service of demand notice—Registered notice was served on accused petitioner and cognizance taken for offence under Section 138 of the Act—Objection raised by accused that in the said notice, address of the petitioner accused was wrongly mentioned—Objection raised at this stage is held as premature—Submission that the notice has not been served on the petitioners cannot be entertained at this premature stage of trial.
Held: On going through the record, I am unable to appreciate the submission. The said objection at this stage is premature, it is always open to the petitioner to show and demonstrate before the court by cross-examination and further reading of evidence that in fact, the notice was not served on her, therefore, the very filing of the complaint under Section 138 was bad in law. If such submissions are entertained at this stage it will be too premature as the trial has to go on and which is at its inception. Merely making submission that the petitioner was resident of Saraswati Nagar Police Station and not P.S., Azad Chowk may not help him to quash the proceeding at this stage which can be evaluated after detailed evidence in this respect is on record. Therefore, the submission that the notice has not been served on the petitioner cannot be entertained at this. Premature stage of trial. (Para 18)
Result : Petition dismissed.
Goutam Bhuduri, J.— By this petition, the challenge is made to the cognizance taken under Section 138 of the Negotiable Instruments Act, 1881 (for short “the NI Act”) whereby the notices were issued to the petitioner accused by the Court of J.M.F.C, Raipur on 31.8.2009.
2. Learned counsel for the petitioner submits that the respondent had filed a complaint on 17.8.2009 before the JMFC, Raipur, on the ground that the cheque worth Rs.90,000 was dishonoured for want of money. The cheque drawn on Central Bank of India bearing No. 142789 dated 24.3.2009 was issued in favour of the respondent and on being presented, it was dishonoured on account of insufficient funds. It is alleged that respondent thereafter issued a demand notice to the petitioner accused on 25.7.2009 through her advocate as required under the Negotiable Instruments Act.
3. Learned counsel for the petitioner submits that in the said notice, the address of the petitioner was wrongly mentioned, as such, the presumption cannot be drawn that the service of notice was effected. He, therefore, submits that Section 138B mandates that the service of notice to be effected and mere sending of the notice will not comply with the provisions of Section 138B. Therefore, the issuance of summons by the Court below on that basis is bad in law. Further it is submitted that the cognizance was taken by the learned court below on 31.8.2009 without recording the evidence of the complainant/respondent and as such, the very taking cognizance of the offence was bad inasmuch as the affidavit was subsequently filed on 7.9.2013 that is much after taking the cognizance on 31.8.2009. He, therefore, submits that the same is also clearly illegal. The counsel further submits that Section 142 of NI Act puts a rider that after receipt of notice only, the cognizance could have been taken and without such service, the same was bad in law. He further vehemently submitted that cognizance cannot be taken only on the basis of affidavit without any examination.
4. Learned counsel for the applicant also relies on a case law reported in 2009(1) SCC 720: AIR 2009 SC 1168 in case of Harman Electronics Private Limited and another v. National Panasonic India Private Limited and submits that giving a notice and receiving a notice are two distinct forms which cannot be equated with each other and in this case since the notice was not received, the procedure of taking cognizance is bad in law.
5. Per contra, learned counsel appearing for the respondent submits that the address of the petitioner was correctly shown in the notice which was received by her. It is stated that the petitioner was shown to be a resident of Bajrang Nagar Police Station, Azad Chowk, therefore, the mere fact that the addressee was resident of Bajrang Nagar. R.S. Saraswati Nagar will not make much difference as the notice was served. He further submits that the notice was duly received and mere fact that police station was wrongly shown does not make any difference. He further submits that presumption of the General Clauses Act and Section 94 of the NI Act shall come into play which draws a presumption of service of notice. He further submits that along-with the original complaint under Section 138 of the NI Act, an affidavit was also attached, with the complaint under Section 138. Therefore, the trial Court has taken the cognizance on the basis of such affidavit which is recorded in its order sheet and hence the taking of cognizance cannot be faulted with at the instance of the petitioner.
6. I have gone through the documents. I have examined the papers of criminal complaint which is filed and the orders passed by the trial. Court. A perusal of the order sheet of the learned Court below shows that the complainant alongwith his memo of complaint under Section138 of the Negotiable Instruments Act had already attached an affidavit and the documents as per the list on 17.8.2009. Subsequently, the learned court below on 31.8.2009 after exami
