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High Court Of Calcutta
S. P. Talukdar
ARUN KUMAR MOHATA - Appellant
Versus
MANJUSHREE SINGHI - Respondent
C. R. A. N. 655 Of 2005
Decided On : 02/10/2006
NEGOTIABLE INSTRUMENTS ACT, 1881 - SECTION 138 - QUASHING OF PROCEEDINGS - COURT ANALYSIS AND CONCLUSION - APPLICABILITY OF SECTION 145 - EVIDENCE-ON-AFFIDAVIT - SECTION 296 OF THE CODE OF CRIMINAL PROCEDURE, 1973 - EVIDENCE OF FORMAL CHARACTER ON AFFIDAVIT - ORDER OF INJUNCTION IN CIVIL SUIT - STAY OF CRIMINAL PROCEEDINGS - JUDICIAL NOTICE OF STAY ORDER - INTERPRETATION OF STATUTES - UNWORKABLE OR IMPRACTICABLE RESULT - SECTION 44 OF THE SPECIFIC RELIEF ACT - PRAGMATIC SOLUTION - SECTION 200 OF THE CODE OF CRIMINAL PROCEDURE - STATEMENT ON OATH - TAKING COGNIZANCE OF OFFENCE - ISSUANCE OF PROCESS - PREREQUISITES OF SECTION 138 OF THE NEGOTIABLE INSTRUMENTS ACT - CONDITIONS FOR OFFENCE UNDER SECTION 123 OF THE NEGOTIABLE INSTRUMENTS ACT - BINDING NATURE OF CIVIL COURT DECISIONS ON CRIMINAL COURTS - ENFORCEABILITY OF AGREEMENTS - JUDICIAL NOTICE OF FACTS - AVOIDANCE OF UNWORKABLE OR IMPRACTICABLE CONSTRUCTION OF ENACTMENTS - COMMON LAW DEVELOPMENT - PRAGMATIC APPROACH - TIME AND COST CONSIDERATIONS - ISSUANCE OF CHEQUES - DEPOSIT OF CHEQUES - INTIMATION OF DISHONOR - NOTICE OF DISHONOR - FILING OF COMPLAINT - PASSING OF INJUNCTION ORDER - MERITS OF GRIEVANCES - ABUSE OF PROCESS OF COURT - DISMISSAL OF APPEALS - VACATION OF INTERIM ORDER.
Fact of the Case:
The petitioner challenged the proceedings initiated against him under Section 138 of the Negotiable Instruments Act, 1881, alleging that the complaint was not signed by the opposite party and the affidavit was not affirmed by her, and that the learned court took cognizance of the alleged offense based on an affidavit filed under Section 145 of the Act, which was not applicable in this case.
Finding of the Court:
The court held that the affidavit-on-evidence could be sufficient justification for the learned Magistrate to take cognizance of the offense and assure the process, and that the mere fact that the learned Magistrate took cognizance on the basis of affidavit-on-evidence could not be a justification for any interference. The court also held that the conditions required to constitute the offense within the meaning of Section 123 of the Negotiable Instruments Act were satisfied in this case.
Issues: 1. Whether Section 145 of the Negotiable Instruments Act, 1881, can be used as a substitute for a statement under Section 200 of the Code of Criminal Procedure, 1973? 2. Whether the order of injunction passed in a civil suit is binding on the criminal court? 3. Whether the continuation of the proceedings would amount to an abuse of the process of the court?
Ratio Decidendi: 1. Section 145 of the Negotiable Instruments Act, 1881, is not a substitute for a statement under Section 200 of the Code of Criminal Procedure, 1973, but it can be sufficient justification for the learned Magistrate to take cognizance of the offense and assure the process. 2. The order of injunction passed in a civil suit is not binding on the criminal court, but the criminal court can take judicial notice of the order and consider its implications. 3. The continuation of the proceedings would not amount to an abuse of the process of the court, as the allegations made constitute an offense and there is no evidence that the proceedings are being used for an improper purpose.
Final Decision: The court dismissed the petition and held that there was no merit in the grievances ventilated on behalf of the petitioner. The court also vacated the interim order, if any.
( 1 ) THE petitioner by filing an application under section 482 of the Criminal Procedure Code, 1973 sought for quashing of the proceedings in case No. C-186 of 2004 now pending before the learned Judicial Magistrate, first Court, Alipore, South 24-Parganas.
( 2 ) THE grievances of the petitioner, as ventilated in the application, may briefly be stated as follows : the constituted Attorney of the opposite party, Smt. Manjushree Singhi, filed an application under section 138 of the Negotiable Instruments Act, 1881 being case No. C-186 of 2004 against the present petitioner on 22nd January, 2004. The petitioner was allowed by the learned Trial Court to be represented by his learned Advocate under section 205 of the Code of Criminal Procedure. The petitioner after obtaining the certified copy of the order-sheet on 23rd february, 2005 came to know that neither the petition of complaint was signed by the opposite party, nor the affidavit in the form of an affidavit under section 145 of the N I Act was affirmed by her. The learned Court took cognizance of the alleged offence on the basis of the affidavit of Prakash Kumar Mohata filed under section 145 of the N I Act. The said section has no manner of application and does not curtail the procedure established by law under the provisions of section 200 of the Code. There could be no legal sanction behind relying on the affidavit of Sri Prakash Mohata purportedly under section 145 of the N I Act as the requirement of law i. e. , examination of the complainant and the witnesses present on oath, does not get eclipsed and, as such, the order dated 08. 02. 2004 issuing process was bad in law. The dispute between the parties is purely of civil nature. It was alleged in the complaint that in pursuance of a purported memorandum of Agreement, dated 15th October, 2003, the petitioner agreed to pay a total sum of Rs. 14,55,000/- to the opposite party as her settled share in shree Ratan Mohata (HUF) in respect of certain Bikaner properties and pursuant thereto the petitioner allegedly issued two cheques dated 15th november, 2003 of Rs. 7,27,500/- each to the opposite party and the said cheques were dishonoured on presentation with the remark 'payment stopped by drawer' and the petitioner failed to pay the amount in respect of the said two cheques in spite of service of notice under section 138 (b) of the N I Act.
( 3 ) THERE was, however, no mention of the facts and circumstances under which the petitioner was compelled to issue such cheques. S. R. Mohata HUF is a Hindu Undivided Family wherein S. R. Mohata, the father of the petitioner, was the Karta. He died in the year 2000 leaving behind his widow, Smt. Sushila devi Mohata, the mother of the petitioner, his two sons, viz. , the petitioner and the said Prakash Kumar Mohata and his daughter, the opposite party herein. Upon death of S. R. Mohata, the petitioner became the Karta of the said HUF. Certain properties in Rajasthan were jointly owned by the said S. R. Mohata huf and one B. R. Mohata. Pursuant to an award dated 7th May, 2001, certain properties at Bikaner, Rajasthan were exclusively allotted to the said S. R. Mohata HUF. Prakash Kumar Mohata and the opposite party herein filed an execution proceeding, being Execution Case No. 35 of 2002, wherein the Hon'ble high Court appointed a receiver to execute and register a partition deed relating to the properties allotted to the said S. R. Mohata HUF and B. R. Mohata under the Arbitration Award. Prior to filing of the execution case, four members of the Mohata family entered into a family settlement on 16th July, 2001. By such family settlement, it was agreed that the petitioner and his mother would pay to the opposite party a sum equivalent to 6. 25% of the sale proceeds of a property at Gajner Road, Bikaner. It was also agreed that the petitioner and his mother would sell the Gajner Road property for meeting the liabilities of a company by the name Universal Conveyer Be
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