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IN THE HIGH COURT OF JAMMU AND KASHMIR AND LADAKH AT SRINAGAR
Sanjay Dhar, J.
Ab. Rashid Bhat - Petitioner
Versus
Gh. Ahmad Bhat – Respondents
CRM(M) No. 309/2021
Decided On : 29-09-2021
NEGOTIABLE INSTRUMENTS ACT - CRIMINAL PROCEDURE CODE - Sections 138, 145 of the Negotiable Instruments Act; Sections 200, 204 of the Code of Criminal Procedure - The court discussed the provisions of Section 138 of the Negotiable Instruments Act, which deals with the dishonor of cheques, and Section 145, which allows for evidence via affidavits in such cases, thus permitting a departure from the usual requirements of Section 200 of the Cr.P.C. The court emphasized that affidavits can be considered at both pre-cognizance and post-cognizance stages, affirming that the trial Magistrate's reliance on affidavits was lawful. The court also clarified that while a Magistrate must apply their mind to the allegations before issuing process, detailed reasons are not mandated, as long as there is an indication of satisfaction regarding the prima facie case against the accused. This legal framework influenced the court's decision to uphold the lower court's orders.
Fact of the Case:
The petitioner challenged the orders of the Additional Sessions Judge and the Judicial Magistrate regarding a complaint filed under Section 138 of the Negotiable Instruments Act for dishonor of a cheque. The trial Magistrate took cognizance based on affidavits and documents submitted by the complainant, which the petitioner contested as improper.
Finding of the Court:
The court found that the trial Magistrate's reliance on affidavits was permissible under Section 145 of the Negotiable Instruments Act, allowing for evidence without the need for oral examination under Section 200 of the Cr.P.C. The court concluded that the Magistrate had applied his mind to the material presented and that the order was not cryptic or devoid of reasoning.
Issues: 1. Whether the trial Magistrate was required to record statements on oath before taking cognizance of the offence. 2. Whether the order of the trial Magistrate was cryptic and lacked reasoning.
Ratio Decidendi: The court held that under Section 145 of the Negotiable Instruments Act, affidavits can be used as evidence at both pre-cognizance and post-cognizance stages. It also established that while a Magistrate must apply their mind to the allegations, detailed reasons for issuing process are not legally required.
Final Decision: The court dismissed the petition, affirming the orders of the lower courts as valid and lawful.
JUDGMENT :
Sanjay Dhar, J.
1. Petitioner has challenged order dated 20.09.2021, passed by Additional Sessions Judge, Sopore (hereinafter referred to as the Revisional Court), as also order dated 14.12.2018 passed by Judicial Magistrate, 1st Class, Dangiwacha (hereinafter referred to as the trial Magistrate).
2. Vide the order dated 14.12.2018, trial Magistrate, after taking cognizance of the offences alleged against the petitioner in a complaint filed by respondent under Section 138 of the Negotiable Instruments Act [for short "the Act"], issued process against the petitioner. The aforesaid order came to be challenged by the petitioner herein through the medium of a revision petition before the Revisional Court. The said revision petition came to be dismissed by the Revisional Court vide its order dated 20.09.2021. Both these orders are under challenge through the medium of instant petition filed under Section 482 of Cr.P.C.
3. The facts leading to the filing of this petition are that a complaint alleging commission of offence under Section 138 of the Act came to be filed by respondent before trial Magistrate. In support of the complaint, affidavits of the complaint and two witnesses were filed by the complainant and besides this, other documents like cheque, memo of dishonour and copy of notice etc. were also attached by the complainant with the complaint. The learned trial Magistrate took cognizance of the offence and issued process against the petitioner in terms of impugned order dated 14.12.2018, which, as already noted, was challenged by the petitioner by way of a revision petition but without any success.
4. The petitioner has challenged both the orders passed by the courts below, primarily, on two grounds. Firstly, it is contended that before taking cognizance of the offence, it was incumbent upon the trial Magistrate to record the statement of complainant and his witnesses on oath in terms of Section 200 of the Code of Criminal Procedure but instead of doing so, learned trial Magistrate entertained the affidavits of the complainant and his witnesses, which according to the petitioner is not permissible in law.
5. In order to test the merits of this contention, it is necessary to notice the provisions contained in Section 200 of the Code of Criminal Procedure. It reads as under:
Provided as follows-
(a) when the complaint is made in writing, nothing herein contained shall be deemed to require a Magistrate to examine the complainant before transferring the case under section 192;
(b) when the complaint is made in writing, nothing herein contained shall be deemed to require the examination of a complainant in any case in which the complaint has been made by a Court or by a public servant acting or purporting to act in the discharge of his official duties;
(c) when the case has been transferred under section 192 and the Magistrate so transferring it already examined the complainant, the Magistrate to whom it is so transferred shall not be bound to re-examine the complainant."
6. From a perusal of the aforesaid provision, it is clear that a Magistrate before taking cognizance of an offence on complaint has to examine on oath the complainant and his witnesses. However, Section 145 of the Act provides a special procedure for entertaining evidence on affidavits in inquiries and trials pertaining to offence under Section 138 of the Act. It reads as under:
Affidavits can be accepted as evidence in proceedings under Section 138 of the Negotiable Instruments Act, and a Magistrate is not required to provide detailed reasons when issuing process against an....
Point of Law : Postponement of issue of process - The dictum is when Magistrate holds inquiry himself, it is not compulsory that he should examine The witnesses and in suitable cases Magistrate can e....
The court reinforced that under the Negotiable Instruments Act, an accused must file a specific application to recall a witness for cross-examination, failing which the trial can proceed without such....
The mandatory requirement of recording evidence under Section 200 and 202 Cr.P.C. before summoning the accused and the limited nature of the inquiry under Section 202.
Payment of a part or whole of the sum represented on a cheque between the period when the cheque is drawn and when it is encashed upon maturity reduces the legally enforceable debt on the date of mat....
The main legal point established in the judgment is the limitation on the court's power to recall the process and the necessity of complying with statutory provisions in the issuance of process under....
The court cannot inquire into the reliability of the allegations in summary proceedings and no further inquiry is necessary if the summoning order demonstrates prima facie findings.
Strict compliance with the provisions of Section 202 of the CrPC is not required in proceedings under Section 138 of the NI Act, and the evidence of witnesses on behalf of the complainant can be perm....
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