1. This petition under Article 227 of the Constitution of India read with Section 482 Cr.P.C. takes exception to the procedure adopted by the learned Magistrate whereby the petitioner has been summoned in a complaint filed against him under Section 138 read with Section 142 of the Negotiable Instruments Act (for short the ''Act'').
2. It is averred that while summoning the petitioner, the learned Magistrate was under legal obligation to follow the procedure as envisaged under Section 200 Cr.P.C. and it was only after examining the complainant and recording the preliminary evidence, that the learned Magistrate could have issued the summoning order that too after satisfying itself that prima facie an offence had been committed by the petitioner. I have heard learned counsel for the parties and have gone through the material placed on record.
3. At the outset, it needs to be observed that this petition has probably been filed without taking into consideration the amendment brought out in the Negotiable Instruments Act. Chapter XVII comprising of Section 138 to 142 was inserted to inculcate faith in the efficacy of banking operation and credibility in transacting business on negotiable instruments. Despite civil remedy Section 138 intended to prevent dishonesty on the part of the drawer of negotiable instrument to draw a cheque without sufficient funds in his account maintained by him in a book and induce the payee or holder in due course to act upon it. Section 138 draws presumption that one commits the offence if he issues the cheque dishonestly. It is seen that once the cheque has been drawn and issued to the payee and the payee has presented cheque and thereafter, if any instructions are issued to the bank for non-payment and the cheque is returned to the payee with such an endorsement, it amount to dishonor of cheque and it comes within the meaning of Section 138.
4. However, even the introduction of aforesaid Sections had not achieved the desired result for dealing with dishonour cheques, hence, the legislator inserted new Sections 143 to 147 in the Act for speedy disposal of the cases relating to dishonor of cheque, therefore, summary trial as well as making the offence compoundable.
5. It is not in dispute that the complaint filed by respondent was accompanied by an affidavit by way of evidence and it is after examining these documents that the learned Magistrate proceeded to summon the petitioner as would be evident from the order dated 1.8.2014, which reads thus:-
"1.8.2014 Present: Sh. Mahesh Chopra, Advocate, for
complainant.
Office report seen. Be registered. From perusal of
case file and documents I am of the opinion that accused be
summoned. Let notice be issued to accused for 20.8.2014."
6. Now as regards the compliance of Section 200 Cr.P.C.,
before summoning the accused/petitioner, this issue is no longer res
integra in view of the judgment rendered by the Hon''ble Supreme
Court in Mandvi Cooperative Bank Limited vs. Nimesh B. Thakore
(2010) 2 Supreme Court 83, as reiterated by the Hon''ble Supreme
Court in a recent judgment of K.S. Joseph vs. Philips Carbon Black
Limited and another (2016) 11 SCC 105, wherein the Hon''ble
Supreme Court has categorically held that the Non obstante clause
in Section 145 of the Act is self-explanatory and over-rules the
requirement of examination of complainant on solemn affirmation
under Section 200 Cr.P.C. and now complainant is entitled in
cheque dishonor cases to give his evidence on affidavit and subject
to all just exceptions, in any inquiry, trial or other proceeding under
Cr.P.C. It shall be apt to reproduce the relevant observations made
in para 3 to 5 of the judgment which reads thus:-
"3. So far as the issue of examination of complainant on solemn
affirmation under Section 200 of the Cr.P.C. is concerned, the
submissions are misconceived on account of Section 145 of the Act
which was inserted along with some other Sections through an
amendment in the year 2002 w.e.f. 06.02.2003. Section 145 of the
Act is as follows :
"145. Evidence on affidavit.-(1) Notwithstanding anything contained
in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence
of the complainant may be given by him on affidavit and may,
subject to all just exceptions be read in evidence in any enquiry,
trial or other proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the application of the
prosecution or the accused, summon and examine any person
giving evidence on affidavit as to the facts contained therein."
4. The non obstante clause in sub-section (1) of Section 145 is selfexplanatory
and over-rules the requirement of examination of the
complainant on solemn affirmation under Section 200 of the Cr.P.C.
Now the complainant is entitled to give his evidence on affidavit
and subject to all just exceptions, the same has to be read in
evidence in any enquiry, trial or other proceeding under the Cr.P.C.
This view is also supported by the judgment of this Court in the case
of Mandavi Cooperative Bank Ltd. v. Nimesh B. Thakore, 2010 3 SCC
83. No doubt this judgment was in a different factual scenario but
this Court went into details of the amendment of 2002 including
Section 145 and in paragraph 18 it also noted the Statement of
Objects and Reasons appended to the Amendment Bill. Inter alia,
the objects included "to prescribe procedure for dispensing with
preliminary evidence of the complainant".
5. In view of discussion made above, the plea based on Section 200
of the Cr.P.C. is rejected as untenable. The other plea relating to
delay of 62 days and taking of cognizance without issuing notice to
dispense with such delay is however found to have substance. The
relevant provision under Section 142 of the Act requires making of
the complaint within one month of cause of action arising on
account of non-compliance with the demand in the notice to
make payment within 15 days. According to appellant the notice
was dated 03.02.2006 alleging non-payment of two cheques each
for Rs.1,80,000/-. Allegedly the appellant had sent a reply denying
his liability through a reply dated 20.02.2006. The complaint was
filed on 24.05.2006. Prima facie, in view of aforesaid dates the
complaint was beyond the permissible period. No doubt the court
has been empowered to take cognizance even after the
prescribed period but only if the complainant satisfies the court that
he had sufficient cause for not making complaint within the
prescribed period.
7. In view of the aforesaid discussion, I find no merit in this
petition and the same is dismissed accordingly, so also the pending
applications, if any.
