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HIGH COURT OF BOMBAY
Vibha Kankanwadi, J
Inayat Ali Hashmat Ali Sayyad – Appellant
Versus
Krishna S/o Ganesh Marke – Respondent
CRIMINAL WRIT PETITION NO.635 OF 2021
For the Appellants/Petitioners: Mrs.Pratibha J. Bharad
For the Respondents: Mr.S.S. Gangakhedkar
Evidence by affidavit is sufficient in summary trials under the Negotiable Instruments Act, eliminating the need for personal witness examination.
Headnote:(A) Negotiable Instruments Act, 1881 - Sections 138, 142, 145 - Code of Criminal Procedure, 1973 - Section 200 - Petition to quash complaint for bouncing of cheque - The Judicial Magistrate must examine complainants before issuing process under Section 138 - Failure to review prior order noted - Affidavit sufficient for inquiry proceedings under Section 145 - No procedural irregularity found. (Paras 1, 5, 8)
(B) Judicial proceedings - Examination of Witnesses - The Magistrate has the discretion to take evidence via affidavit in summary trials under Section 138, ensuring expediency while balancing the rights of the accused. (Paras 7, 8)
Facts of the case:
The petitioner challenged a complaint under Section 138, claiming lack of a legally enforceable debt and improper procedure by the Magistrate in not recording evidence prior to issuing process.
Findings of Court:
The court affirmed that no procedural irregularities existed, supporting the validity of proceedings instituted based on affidavit evidence.
Issues: Whether the Magistrate had the authority to dismiss the petitioner’s application for discharge and whether the examination process adhered to statutory requirements.
Ratio Decidendi: The court held that affidavit suffices for evidence in summary proceedings, dismissing the allegation of procedural failure. Appeals for review of procedural decisions are unfounded against established precedent.
Result: Writ Petition is dismissed.
| Table of Content |
|---|
| 1. petition challenges validity of cheque bouncing complaint under sec. 138. (Para 1 , 5) |
| 2. arguments revolve around procedural adherence by the magistrate. (Para 2 , 4) |
| 3. court clarifies procedural legitimacy of evidence via affidavits and rules on judicial review. (Para 6 , 8) |
ORDER :
1. Present Writ Petition has been filed invoking the constitutional powers of this Court under Article 227 of the Constitution of India and inherent powers under Section 482 of the Code of Criminal Procedure for quashing the complaint i.e. S.C.C. No.998 of 2019 filed against the petitioner by the respondent for the offence punishable under Section 138 of the Negotiable Instruments Act before the learned Judicial Magistrate First Class,Hingoli and to get order below Exhibit-17 dated 29th April 2021 passed by the learned Judicial Magistrate First Class, Hingoli, set aside.
2. Heard learned Advocate Mrs. Bharad appearing for the petitioner and learned Advocate Mr. Gangakhedkar appearing for the respondent.
3. It has been vehemently submitted on behalf of the petitioner – original accused that the learned Judicial Magistrate First Class has committed an error when he has not recorded the evidence before issuing process. Relying upon the decision in Maharaja Developers and another vs. Udaysing S/o Pratapsinghrao Bhonsle and another, 2007 ALL MR (Cri) 1339, it was submitted that the non-obstante clause in Section 142 or 145 of the Negotiable Instruments Act does not override the provisions of Section 200 of the Code of Criminal Procedure and it is mandatory for the Magistrate to examine the complainant who has filed the same under Section 138 of the Negotiable Instruments Act though with an affirmation as regards truthfulness of the contents of the complaint. It, therefore, follows that the Magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under Section 204 of the Code of Criminal Procedure though there is a solemn affirmation at the foot of the complaint by the complainant. It was further submitted that application Exhibit-17 was filed by the present petitioner for discharging him. In fact the petitioner – original accused was serving as relation manager with HDFC Bank, Hingoli branch. Petitioner is not running any cloth business for which it is alleged that he had taken hand-loan if Rs.4,90,000/-. There was absolutely no legal enforceable debt or liability for the petitioner – accused so that he could issue any cheque. The real story behind the said cheque is different and the entire story was narrated by the petitioner - accused in Para No.6 of his application Exhibit-17. In the notice reply, the petitioner – accused has given entire story, yet the complaint came to be filed. The petitioner ought not to have been asked to face the trial when there was no legally enforceable debt or liability and therefore, the order passed below Exhibit-17 by the learned Magistrate is illegal. The entire proceeding itself deserves to be quashed and set aside.
4. The learned Advocate appearing for the respondent strongly opposed the Petition and supported the reasons given in the order passed by the learned Magistrate below Exhibit-17 in the said criminal case. It was further stated that it was the summary criminal case and there is no provision of discharge as such. The learned Judicial Magistrate First Class has rightly observed that he has no powers to review his own order of issuing process in view of the decision in Adalat Prasad vs. Rooplal Jindal and others, 2004(7) SCC 338. The learned Magistrate has not committed any procedural irregularity or illegality and therefore, this cannot be the fit case where the inherent powers of this Court or the constitutional powers of this Court are required to be used.
5. At the outset it is to be noted that in this Writ Petition two points are raised, first is about rejection of application Exhibit-17 on the ground that the learned Magistrate
