Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717
MOHAN M. SHANTANAGOUDAR, J.:— The records are placed before
this Bench to decide the following question:
“Having regard to the amendment to the 1881 Act, brought about by the
amending Act 55/2002, and the statement of objects and reasons
thereto, with effect from 6.2.2003, whereby Sections 143 to 147 are
inserted, whether the recording of a sworn statement by the Magistrate
as required under Section 200 Cr.P.C. in proceedings instituted for an
offence punishable under Section 138 of the 1881 Act, would be
mandatory and whether the same could either be dispensed with or an
affidavit be received in lieu of a sworn statement?
2. The records reveal that the petitioner was tried for the offence
punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘N.I.
Act’ for short). The Trial Court convicted the accused/petitioner and imposed
sentence of imprisonment and fine. The order of the Trial Court convicting
and sentencing the accused is confirmed by the Lower Appellate Court. The
orders of the Courts below arc questioned in this Criminal Revision Petition.
During the hearing of Criminal Revision Petition, it appears the Learned
Advocate for the accused argued that due to non-recording of the sworn
statement of the complainant under Section 200 of Code of Criminal
Procedure (‘Cr.P.C.’ for short), entire criminal proceedings vitiate inasmuch
as such infirmity goes to the root of the matter since it violates mandatory
requirement in law. The Advocate seems to have also contended before the
Learned Single Judge that notwithstanding such objection was not raised
before the Courts below, the petitioner is not disentitled to raise the same as
preliminary ground in Criminal Revision Petition. The sum and substance of
the petitioner’s case is that sworn statement of the accused to be recorded
under Section 200 of Cr.P.C. cannot be dispensed with by receiving affidavit
of the complainant. In the matter on hand, the Trial Court had received the
affidavit of the complainant in lieu of recording of his sworn statement under
Section 200 of Cr.P.C. and proceeded to issue Process against the accused
and thereafter further proceedings have taken place as per law.
Per contra, it seems the complainant’s Advocate contended that the
recording of sworn statement can be dispensed with by receiving the
affidavit of the complainant. In that context, the Learned Single Judge
having noticed conflicting judgments on the subject has referred the matter
to larger Bench and hence the papers are placed before us to decide the
aforementioned question of law.
3. Learned Advocates Sriyuths Ameet Kumar Deshpande, Amit
Mamadapur, Harshavardhana R. Malipatil and R.S. Lagali argued in support
of the contention that the recording of the sworn statement under Section
200 of Cr.P.C. is a must and the said procedure cannot be dispensed with by
mere receiving the affidavit of the complainant.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3732 :
Sriyuths Deepak V. Barad for Veeresh B. Patil, Amaresh S. Roja,
Shivanand Pattanashetty and Sri Sanjay A. Patil, Learned Advocates have
contended that the affidavit of the complainant can be received in lieu of his
sworn statement by dispensing the procedure relating to recording of the
sworn statement of the complainant under Section 200 of Cr.P.C.
4. Learned Advocates have drawn the attention of the Court to various
provisions and relied upon the judgments of the Apex Court and various
High Courts in support of their respective contentions.
5. Before proceeding further, it would be beneficial to refer to relevant
provisions of Cr.P.C. Evidence Act and N.I. Act, which are as under:
Section 200 Cr.P.C.: Examination of complainant — A Magistrate taking
cognizance of an offence on complaint shall examine upon oath the
complainant and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the
complainant and the witnesses, and also by the Magistrate:
Provided that, when the complaint is made in writing, the Magistrate
need not examine the complainant and the witnesses.
(a) if a public servant acting or purporting to act in the discharge of his
official duties or a Court has made the complaint; or
(b) if the Magistrate makes over the case for inquiry or trial to another
Magistrate under Section 192:
Provided further that if the Magistrate makes over the case to
another Magistrate under Section 192 after examining the
complainant and the witnesses, the latter Magistrate need not
re-examine them.
Section 4 Cr.P.C.: Trial of offences under the Indian Penal Code and
other laws:—
(1) All offences under the Indian Penal Code (45 of 1860) shall be
investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.
(2) All offences under any other law shall be investigated, inquired
into, tried, and otherwise dealt with according to the same
provisions, but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences.
Section 5 Cr.P.C.: Savings: Nothing contained in this Code shall, in the
absence of a specific provision to the contrary, affect any special or local
law for the time being in force, or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any other law
for the time being in force.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3735 :
Section 2(g) Cr.P.C.: “inquiry” means every inquiry, other than a trial,
conducted under this Code by a Magistrate or Court;
Section 3 of the Evidence Act: Evidence means and includes all
statements which the Court permits or requires to be made before it by
witnesses, in relation to matters of fact under inquiry.
Section 142 of N.I. Act: Cognizance of offences.—Notwithstanding
anything contained in the Code of Criminal Procedure, 1973 (2 of 1974)—
(a) no Court shall take cognizance of any offence punishable under
Section 138 except upon a complaint, in writing, made by the
payee or, as the case may be, the holder in due course of the
cheque;
(b) such complaint is made within one month of the date on which the
cause of action arises under clause (c) of the proviso to Section
138:
[Provided that the cognizance of a complaint may be taken by
the Court after the prescribed period, if the complainant satisfies
the Court that he had sufficient cause for not making a complaint
within such period.]
(c) no court inferior to that of a Metropolitan Magistrate or a Judicial
Magistrate of the first class shall try any offence punishable under
Section 138.]
Section 143 of N.I. Act: Power of Court to try cases summarily.— (1)
Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), all offences under this Chapter shall be tried by a
Judicial Magistrate of the first class or by a Metropolitan Magistrate and
the provisions of Sections 262 to 265 (both inclusive) of the said Code
shall, as far as may be, apply to such trials:
Provided that in the case of any conviction in a summary trial under
this Section, it shall be lawful for the Magistrate to pass a sentence of
imprisonment for a term not exceeding one year and an amount of
fine exceeding five thousand rupees:
Provided further that when at the commencement of, or in the
course of, a summary trial under this Section, it appears to the
Magistrate that the nature of the case is such that a sentence or
imprisonment for a term exceeding one year may have to be
passed or that it is, for any other reason, undesirable to try the
case summarily, the Magistrate shall after hearing the parties,
record an order to that effect and thereafter recall any witness who
may have been examined and proceed to hear or rehear the case in
the manner provided by the said Code.
(2) The trial of a case under this Section shall, so far as practicable,
consistently with the interests of justice, be continued from day to
day until its conclusion, unless the Court finds the adjournment of
the trial beyond the following day to be necessary for reasons to be
recorded in writing.
(3) Every trial under this Section shall be conducted as expeditiously
as possible and an endeavour shall be made to conclude the trial
within six months from the date of filing of the complaint.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3737 :
Section 144 of N.I. Act: Mode of service of summons— (1)
Notwithstanding anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), and for the purposes of this Chapter, a Magistrate
issuing a summons to an accused or a witness may direct a copy of
summons to be served at the place where such accused or witness
ordinarily resides or carries on business or personally works; for gain, by
speed post or by such courier services as are approved by a Court of
Session.
(2) Where an acknowledgment purporting to be signed by the accused or
the witness or an endorsement purported to be made by any person
authorised by the postal department or the courier services that the
accused or the witness refused to take delivery of summons has been
received, the Court issuing the summons may declare that the summons
has been duly served.
Section 145 of N.I. Act: 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 many enquiry, trial or other proceeding under
the said Code.
(2) The Court may, if it minks 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.
6. Section 200 of Cr.P.C., mandates that if a private complaint is filed,
the Magistrate shall apply his mind and shall proceed to examine the
complainant and his witnesses, if any present. Exceptions are carved out and
it stipulates that such examination need not be done if the complaint is filed
by a public servant acting or purporting to act in the discharge of his official
duties. Such examination is also not necessary where a Court has made the
complaint. Proviso (b) to Section 200 of Cr.P.C. further stipulates that such
examination of the complainant and recording of sworn statement need not
be done if the Magistrate makes over the case for enquiry or trial under
Section 192 of Cr.P.C. to another Magistrate. In all other cases, the
examination of the complainant needs to be made. The Cr.P.C. does not
provide for any other exception.
7. The N.I. Act has been amended from time to time. Section 142 of the
N.I. Act is amended w.e.f. 1.4.1989. Sections 143, 144 and 145 of the N.I.
Act are amended w.e.f. 6.2.2003.
8. We consider it necessary to peruse the statement of objects and
reasons which prompted the Parliament to amend Sections 143, 144 and
145 of the N.I. Act. The same reads thus:
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3739 :
“The Negotiable Instruments Act, 1881 was amended by the Banking,
Public Financial Institutions and Negotiable Instruments Laws
(Amendment) Act, 1988 wherein a new Chapter XVII was incorporated for
penalties in case of dishonour of cheques due to insufficiency of funds in
the account of the drawer of the cheque. These provisions were
incorporated with a view to encourage the culture of use of cheques and
enhancing the credibility of the instrument. The existing provisions in the
Negotiable Instruments Act, 1881, namely, Sections 138 to 142 in
Chapter XVII have been found deficient in dealing with dishonour of
cheques. Not only the punishment provided in the Act has proved to be
inadequate, the procedure prescribed for the Courts to deal with such
matters has been found to be cumbersome. The courts are unable to
dispose of such cases expeditiously in a time-bound manner in view of
the procedure contained in the Act.
2. A large number of cases are reported to be pending under Sections
138 to 142 of the Negotiable Instruments Act in various courts in
the country. Keeping in view the large number of complaints under
the said Act pending in various Courts, a working group was
constituted to review Section 138 of the Negotiable Instruments
Act, 1881 and make recommendations as to what changes were
needed to effectively achieve the purpose of that Section.
3. The recommendations of the Working Group along with other
representations from various institutions and organisations were
examined by the Government in consultation with Reserve Bank of
India and other legal experts, and a Bill, namely, the Negotiable
Instruments (Amendment) Bill, 2001 was introduced in the Lok
Sabha on 24.7.2001. The Bill was referred to the Standing
Committee on Finance which made certain recommendations in its
report submitted to Lok Sabha in November 2001.
4. Keeping in view the recommendations of the Standing Committee
on Finance and other representations, it has been decided to bring
out, inter alia, the following amendments in the Negotiable
Instruments Act, 1881, namely:
(i) to increase the punishment as prescribed under the Act from one
year to two years:
(ii) to increase the period for issue of notice by the payee to the
drawer from 15 days to 30 days;
(iii) to provide discretion to the Court to waive the period of one
month, which has been prescribed for taking cognizance of the
case under the Act.
(iv) to prescribe procedure for dispensing with preliminary evidence
of the complainant:
(v) to prescribe procedure for servicing of summons to the accused
or witness by the court through speed post or empanelled
private couriers:
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3742 :
(vi) to provide for summary trial of the cases under the Act with a
view to speeding up disposal of cases:
(vii) to make the offence under the Act compoundable;
(viii) to exempt those directors from prosecution under Section 141
of the Act who are nominated as Directors of a company by
virtue of their holding any offence or employment in the Central
Government or a financial Corporation owned or controlled by
the Central Government, or the State Government, as the case
may be;
(ix) to provide that the Magistrate trying an offence shall have
power to pass sentence of imprisonment for a term exceeding
one year and amount of fine exceeding five thousand rupees;
(x) to make the Information Technology Act, 2000 applicable to the
Negotiable Instruments Act, 1881, in relation to electronic
cheques and truncated cheques subject to such modifications
and amendments as the central Government, in consultation
with the Reserve Bank of India, considers necessary for carrying
out the purposes of the Act, by notification in the Official
Gazette; and
(xi) to amend definition of “bankers books” and “certified copy”
given in the Bankers’ Books Evidence Act, 1891.
5. The proposed amendments in the Act are aimed at early disposal of
cases relating to dishonour of cheques, enhancing punishment for
offenders, introducing electronic image of a truncated cheque and a
cheque in the electronic form as well as exempting an official
nominee Director from prosecution under the Negotiable
Instruments Act, 1881.”
(underlining is mine)
9. It is also relevant to note in this context the observations made by the
Hon’ble Supreme Court in the case of Mandvi Co-Operative Bank Limited v.
Nimesh B. Thakore1 which read thus:
20. It may be noted that the provisions of Sections 143, 144, 145 and
147 expressly depart from and override the provisions of the Code of
Criminal Procedure, the main body of adjective law for criminal trials.
The provisions of Section 146 similarly depart from the principles of
the Evidence Act. Section 143 makes it possible for the complaints
under Section 138 of the Act to be tried in the summary manner,
except, of course, for the relatively small number of cases where the
Magistrate feels that the nature of the case is such that a sentence of
imprisonment for a term exceeding one year may have to be passed
or that it is, for any other reason, undesirable to try the case
summarily.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3745 :
21. It is, however, significant that the procedure of summary trials is
adopted under Section 143 subject to the qualification “as far as
possible”, thus, leaving sufficient flexibility so as not to affect the quick
flow of the trial process. Even while following the procedure of
summary trials, the non obstante clause and the expression “as far as
possible” used in Section 143 coupled with the non obstante clause in
Section 145 allow for the evidence of the complainant to be given on
affidavit, that is in the absence of the accused. This would have been
impermissible (even in a summary trial under the Code of Criminal
Procedure) in view of Sections 251 and 254 and especially Section 273
of the Code. The accused, however, is fully protected as under subSection (2) of Section 145 he has the absolute and unqualified right to
have the complainant and any or all of his witnesses summoned for
cross-examination.
(Emphasis supplied)
10. The Law Commission in its Report Number 213 sent to the Union
Minister for Law and Justice on 24.11.2008 advocated the setting up of Fast
Track Magisterial Courts for dealing with the huge pendency of dishonoured
cheque cases. In Para 1.5 of the Report it is stated as follows:
“1.5. Over 38 lakhs cheque bouncing cases are pending in various courts
in the country. There are 7,66,974 cases pending in criminal courts in
Delhi at the Magisterial level as on 1-6-2008. Out of this huge work load,
a substantial portion is of cases under Section-138 of the Negotiable
Instruments Act which alone count for 5,14,333 cases (cheque bouncing).
According to Gujarat High Court sources, there are approximately two
lakhs cheque bouncing cases all over the State, with the majority of them
(84,000 cases) in Ahmedabad, followed by Surat, Vadodara and Rajkot.
73.000 cases were filed under Section 138 of the Negotiable Instruments
Act (cheque bouncing) on a single day by a private telecom company
before a Bangalore Court, informed the Chief Justice of India, K.G.
Balakrishnan, urging the Government to appoint more judges to deal with
1.8 crores pending cases in the country. The number of complaints which
are pending in Bombay courts seriously cast shadow on the credibility of
our trade, commerce and business. Immediate steps have to be taken by
all concerned to ensure restoration of the credibility of trade, commerce
and business.”
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3747 :
(Emphasis supplied)
11. From the aforementioned, it is clear that the Legislature noticed the
alarming state of affairs about huge pendency of complaints under Section
138 of N.I. Act and, therefore, the Legislature was very much keen to get
the complaints under Section 138 of the N.I. Act tried and decided at an
early date. That is why the Legislature prescribed procedure for dispensing
with the stage of preliminary evidence and achieved the object by providing
Section 145(q) of the N.I. Act. The very fact that the Legislature specifically
provided in sub-Section (3) of Section 143 of the N.I. Act that every trial
shall be conducted as expeditiously as possible and an endeavour shall be
made to complete the trial within six months from the date of lodging of the
complaint clearly indicates the legislative intent that issuance of process was
also intended to be expedited after lodging of the complaint. Time and again
the Apex Court has held that the object of bringing Section 138 of the N.I.
Act on the statute book is to inculcate faith in the efficacy of banking
operations and credibility in transacting business on negotiable instruments
(see Kusum Ingots & Alloys Ltd v. Pennar Peterson Securities Ltd.2.)
12. From the aforementioned, it is also clear that 2002 amendment to
N.I. Act was intended to prescribe procedure for dispensing with preliminary
evidence of the complainant. The Legislature was alarmed by the huge
pendency of the cases under Section 138 of the N.I. Act. The law makers
identified the stipulation of law that the complainant must be examined
under Section 200 of Cr.P.C. at the preliminary stage as one stumbling block
to expedite disposal of the complaints under Section 138 of the N.I. Act.
With this background, the amendment is brought out to remedy the
situation. Thus the provisions of Sections 143 to 145 of the N.I. Act will have
to be read in consonance with the aims and objects of the Legislature.
Otherwise the bringing of amendment would be a futile exercise.
13. It may be noted that the provisions of Sections 143, 144, 145 and
147 of the N.I. Act expressly depart from and override the provisions of the
Cr.P.C. The provisions of Section 146 of the N.I. Act similarly depart from
the Principles of the Evidence Act. Section 143 of the N.I. Act makes it
possible for the complainants under Section 138 of the N.I. Act to be tried in
the summary manner. Even while following the procedure of summary trials,
the non obstante clause and the expression “as far as possible” used in
Section 143 coupled with the non obstante clause in Section 145 allow for
the evidence of the complainant to be given on affidavit, that is, in the
absence of the accused. This would have been impermissible even in a
summary trial under Cr.P.C. in view of Sections 251 and 254 and especially
Section 273 of Cr.P.C.
14. It is submitted that the sworn statement of the complainant and
witnesses recorded under Section 200 of Cr.P.C. cannot be reckoned as
evidence and proceedings under Section 200 of Cr.P.C. cannot be reckoned
as enquiry, trial or other proceedings under Cr.P.C. It is also argued that
Magistrate would not be in a position to find out the truth or otherwise of the
complaint in case if the affidavit is received in lieu of sworn statement. We
find no merit in the said contentions.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3750 :
15. In the case of Vadilal Panchal v. Dattatraya3, it is indicated that
procedure prior to an order of dismissal under Section 203 of Cr.P.C. is
enquiry. Even otherwise, there cannot be any dispute that at the stage of
Section 200 Cr.P.C. the Court would be applying its mind by considering the
matter based on the material available before it to find out as to whether
there are sufficient grounds to proceed against the accused or not. At that
stage, the materials available before the Court would be the complaint,
sworn statement of the complainant and the documents, if any furnished by
the complainant. The Court would apply its mind to these materials
judiciously to decide as to whether further proceedings would be taken or to
dismiss the complaint. All these proceedings prior to issuance of process in
our considered opinion would certainly qualify to be inquiry as defined under
Section 2(g) of the Cr.P.C. Under Section 2(g) of Cr.P.C. ‘inquiry’ means
every inquiry, other than a trial, conducted under the Cr.P.C. by a Magistrate
or Court. Up to the stage of 204 Cr.P.C. the trial will not commence.
Therefore all the proceedings up to the stage of Section 204 Cr.P.C. would
either fall under the definition of “enquiry” or definition of “other
proceedings” as mentioned in Section 145 of the N.I. Act. Even while
dismissing the complaint, the Magistrate would judiciously consider the
material placed before him and will come to the conclusion. Thus it is clear
that only the material collected during the course of inquiry would be looked
into by the Magistrate while issuing the process or while dismissing the
complaint. Therefore it cannot be said that the procedure relating to
receiving of the complaint or recording of the sworn statement as the case
may be would not come within the ambit of “inquiry”, cannot be accepted.
16. Learned Counsel for the petitioner argued that the deposition of the
complainant during the examination-in-chief only would be treated as
evidence and consequently the sworn statement of the complainant recorded
under Section 200 of Cr.P.C. cannot be treated as evidence. In other words,
Learned Counsel for the petitioner argued on the assumption that sworn
statement of the complainant cannot be reckoned as evidence for the
purpose of Section 145 of N.I. Act and consequently, the affidavit
contemplated cannot be accepted as evidence.
17. The word, ‘evidence’ as defined under Section 3 of the Evidence Act
means and includes all statements which the Court permits or requires to be
made before it by the witnesses, in relation to matters of fact under inquiry.
Thus it is clear that the statements which the Court permits or requires to be
made before it by the witnesses even during the course of enquiry would be
evidence. It is strictly not necessary that the evidence should come on
record during the course of trial only. On the other hand the evidence may
come during the course of enquiry also inasmuch as the definition of
evidence is inclusive in nature which encompasses in itself all the statements
which the Court permits or requires to be made before it by the witnesses.
Any statement which the Court permits or requires to be made before it by
the witnesses, whether such statement be tested by a cross-examination or
not, will certainly be evidence for the purpose of Section 3 of the Evidence
Act. The statement of the witnesses recorded under Section 200 or 202 of
Cr.P.C. are not tested by cross-examination.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3751 :
18. The Parliament and the working group set up by the Parliament had
come to the conclusion that preliminary evidence can be recorded by
receiving evidence on affidavit without insisting on personal appearance and
examination of the complainant. As it has been held by the High Court of
Kerala in the case of Vasudevan v. State of Kerala4, the Legislature was
prescribing a remedy for a malady which it perceived. The purpose of
Section 138 of the N.I. Act would be stultified and frustrated if there is no
expeditious disposal of the complaints under Section 138 of the N.I. Act. The
Legislature had permitted reception of affidavits by complainants as
evidence in prosecutions under Section 138 of the N.I. Act to achieve the
object of speedy decision. The Court cannot insist that the complainant shall
tender sworn statement in all cases arising under Section 138 of the N.I.
Act. Such insistence would certainly run counter to the mandate of Section
145 of the N.I. Act. It is therefore imperative, unless the case on hand falls
within the ‘just exception’ contemplated under Section 145 of the N.I. Act
that the Criminal Courts must receive affidavits as evidence at the stage of
Section 200 Cr.P.C. also.
19. We would not agree with the submission made at the Bar that the
Magistrate would not be in a position to find out the truth or otherwise of the
complaint in case if the affidavit is received in lieu of sworn statement. As
aforementioned, the Magistrate has to decide as to whether the process
should be issued or not based on the material on record. He has to apply his
mind judiciously to the facts of the case. Even if the affidavit is filed in lieu
of the sworn statement of the complainant, the complaint and the
documents submitted alongwith the complaint as well as the affidavit will
have to be looked into by the Magistrate by applying his judicious mind
before taking further steps in accordance with law. The Magistrate is
expected to apply his mind to ensure rejection of frivolous complaints and to
accept the genuine and bonafide complaints. Even on the basis of the sworn
statement recorded at pre-process stage, the Magistrate may not be in a
position to conclude that what was stated in the sworn statement by the
complainant or his witnesses is gospel truth inasmuch as such sworn
statement is not tested with the cross-examination. At the pre-process
stage, the Magistrate will have only the benefit of the sworn statements of
the complainant and his witnesses, if any and the documents produced.
Even when the affidavits of the complainant and his witnesses are filed in
the matter arising under the provisions of N.I. Act, the Magistrate would be
having the benefit of only the affidavit and the other documents apart from
the complaint. The Magistrate has to apply his mind to the complaint,
documents and the sworn statement/affidavit before taking further steps in
accordance with law. Therefore we do not find any difference between the
sworn statement of the complainant and the affidavit duly sworn to by the
complainant to be filed in lieu of the sworn statement at the pre-process
stage while dealing with the matters arising under Section 138 of the N.I.
Act.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3753 :
20. Sri Ameet Kumar Deshpande, Learned Advocate for the petitioner
relied upon the judgment of this Court in B.R. Premakumari v. Supraja
Credit Co-Operative Society Limited5, in support of his contention that
recording of the sworn statement is must even in the matters arising under
the provisions of the N.I. Act and the same cannot be dispensed by receiving
the affidavit. In the said matter, the question as to whether the affidavit can
be received in lieu of the sworn statement of the complainant did not arise
at all. On the other hand in the said matter, the sworn statement was infact
recorded and the documents connected with the offence were also produced
during the course of recording of the sworn statement of the complainant.
However, this Court has observed thus:
4. This Court has held that, recording of sworn statement means, the
statement of the complainant to be recorded by the Magistrate not by
way of an affidavit. The affidavit does not partake the character of sworn
statement. The object of recording sworn statement is, for the purpose of
satisfaction of the Magistrate who records the sworn statement to find out
whether there is prima facie case made out. Accepting the affidavit in the
place of sworn statement is deprecated by this Court.
The aforementioned observations in our considered opinion were
absolutely not necessary inasmuch as there was no necessity or occasion for
the Court to observe so in the said matter inasmuch as admittedly the sworn
statement of the complainant was recorded. Thus in our considered opinion,
the aforementioned observations made by this Court in the case of B.R.
Premakumari cited supra may be treated as obiter dicta.
21. Further reliance was placed upon the judgment of High Court of
Madras in the case of Nellaiappan v. Samuvel6, wherein the High Court of
Madras has also held that recording of the sworn statement cannot be
dispensed with. With great respect, we are unable to persuade ourselves to
agree with the said observations. The High Court of Madras has proceeded
mainly on the ground that Section 145 of the N.I. Act refers only with the
term, ‘evidence’. It has also observed that what is recorded under Section
200 of Cr.P.C., is not evidence, but the same is only a statement. The High
Court of Madras has overlooked the words, ‘enquiry’ or ‘other proceeding’
found in Section 145 of the N.I. Act while passing the aforementioned
judgment. The High Court of Madras gave more emphasis on the word
‘evidence’ and has ignored the other two words used in Section 145 of the
N.I. Act viz., ‘enquiry’ and ‘other proceeding’.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3757 :
22. Reliance is also placed upon the judgment of the Apex Court in the
case of National Small Industries Corporation Limited v. State NCT of Delhi7.
But the facts in the said matter are totally different and the question
involved therein is also different. The Apex Court in the said judgment was
considering the following question: “Where a complaint in regard to
dishonour of a cheque is made by a Government Company, represented by
its officer who is a public servant, whether the exemption made under
Clause (a) of the proviso to Section 200 of Cr.P.C. is available?”. Thus it is
clear that the Apex Court was dealing with the question as to whether the
sworn statement of the officer of a Government Company, who is a public
servant is to be necessarily be recorded under Section 200 Cr.P.C. or
whether his personal attendance can be dispensed with. But in the matter on
hand, we are required to decide entirely a different point.
23. The High Court of Madhya Pradesh in the case of Banshilal v. Abdul
Munnar8, has held that non obstante clause either in Section 142 or in
Section 145(1) does not relieve the Magistrate of his duty to examine the
complainant on oath as ‘examination’ under Section 200 of the Cr.P.C. is
altogether different from ‘evidence’ as contemplated in Section 145(1) of the
Act. In the said judgment, the Madhya Pradesh High Court was of the
opinion that recording of evidence is different from recording of the sworn
statement. We respectfully disagree with the said observations.
As we have already discussed as mentioned supra, the word, ‘evidence’
includes any statement recorded during the course of enquiry also. It need
not be strictly construed as the one recorded during the course of trial.
24. Per contra, Sri Deepak V. Barad, Learned Counsel for the respondent
placed reliance upon the judgment of this Court in the case of K. Srinivasa v.
Kashinath9. In the said judgment, this Court referring to the aims and
objects with which the 2002 amendment was made for N.I. Act, observed
thus:
The expression “affidavit” has been commonly understood to mean a
sworn statement in writing made especially under oath or an affirmation
before the authorised magistrate or officer. The affidavit has been defined
in sub-Section (iii) of Section 3 of General Clauses Act 1897 to include
“affirmation and declaration in the case of person by law allowed to affirm
or declare instead of swearing. “The essential ingredients of an affidavit
are that the statements or declarations are made by the deponent
relevant to the subject matter and in order to add sanctity to it he swears
or affirms the truth of the statements made in the presence of a person
who in law is authorised either to administer oath or to accept the
affirmation. There is a responsibility on the declarant for making precise
and accurate statements in affidavit. The part or the role assigned to the
person entitled to administer oath is no less sacrosanct. Section 3 of the
Oaths Act, 1969 specifies persons on whom the power to administer oath
or record affirmation or oath before the person authorised to administer
the same and then at the foot of affidavit, the signature of the deponent
must appear and below that the officer entitled to administer oath must
put his signature in token of both, that he administered the oath and that
deponent has signed in his presence. Thus it is clear that necessary
safeguards are to be taken at the time of swearing to the affidavit. In
view of the same, the Legislature must have thought it fit to dispense
with recording of the sworn statement of the complainant by accepting
the affidavit. If at all, any party wishes to examine the deponent of such
affidavit, it is always open for him to do so by making application before
the competent Court as enumerated in Section 145(2) of the “Act”.
In view of the discussion made above, this Court is of the considered
view that the non-obstante clause in Section 145 of the “Act” dispenses
the procedure contemplated in Section 200 of the Code of Criminal
Procedure in respect of examination of the complainant and his witnesses
on oath. Consequently, recording of sworn statement by the magistrate in
the criminal cases falling under Section 138 of the Negotiable Instruments
Act may be dispensed with by accepting the affidavit of the complainant
and his witnesses. In view of the above, I do not find merit in the present
revision petition and the same is liable to be rejected. Hence, the
following order is made. The criminal revision petition is dismissed.
Petition dismissed.
This extract is taken from Noorunnisa Begum v. Gopal, ILR 2013 KAR 3717, at page 3763 :
25. The Full Bench of High Court of Judicature at Bombay in the case of
Rajeshbhal Chandrachalke v. State of Maharashtra10, after referring to
various judgments on the point concluded thus:
27. It is true that the trial has not yet commenced at the stage when the
Magistrate is to decide whether or not to issue process on the
complainant under Section 138 of NI Act, but sub-Section (1) of Section
145 permits the complainant to give on affidavit not merely the evidence
during trial, but also evidence in any enquiry or other proceeding under
Cr.P.C. Obviously, the stage at which the Magistrate considers whether or
not to issue process on complaint under Section 138 of NI Act is either an
enquiry or a proceeding under Cr.P.C. other than trial. Sub-Section (1) of
Section 145, therefore, is all comprehensive and permits the complainant
to submit on affidavit what he would have otherwise been required to
state before the Magistrate in the course of examination upon oath under
Section 200 of Cr.P.C.
(Emphasis supplied)
26. It is relevant to note that the High Court of Kerala in the case of
Vasudevan v. State of Kerala (supra) and the High Court of Orissa in Panda
Leasing and Properties Limited v. Hemant Kumar Moharana11, have also
concluded that the evidence of the complainant may also be given on
affidavit in any enquiry under Cr.P.C. It is also held therein that initial
statement under Section 200 of Cr.P.C., which is a procedural step can be
given on affidavit. The High Courts have ruled that the word, ‘proceeding’
found in Section 145 of N.I. Act is a term of wide amplitude which includes
the procedural steps to be taken in Cr.P.C.
27. This Court in yet another judgment in the case of Percy Fernandes v.
Smt. Anita Patrao12, has concluded that an affidavit evidence given by the
complainant under Section 145 of the N.I. Act could be read as evidence
provided under Section 200 of Cr.P.C. The said judgment is confirmed by the
Apex Court in SLP (Crl) 4108-4109/2004 decided on 13.9.2004.
28. There cannot be any dispute that the provisions of Sections 143 to
145 of the N.I. Act have got overriding effect. These Sections contain the
non-obstante clause. Therefore the relevant provisions under Cr.P.C., are
subject to the provisions of Sections 143 to 145 of the N.I. Act. Such
provisions of Cr.P.C., thus, are not attracted. Moreover Section 4(2) Cr.P.C.,
further makes it amply clear that all offences under any other law including
N.I. Act shall be investigated, inquired into, tried and otherwise dealt with
according to same provisions but subject to the enactment for the time
being in force regulating the manner or place of investigating, inquiring into,
trying or otherwise dealing with such offences. It is further made clear in
Section 5 of Cr.P.C. that nothing contained in the Cr.P.C. shall, in the
absence of a specific provision to the contrary, affect any special or local law
for the time being in force, or any special jurisdiction or power conferred, or
any special form of procedure prescribed, by any other law for the time
being in force. Since the special law i.e., N.I. Act provides particular
procedure for receiving the complaint and for filing the affidavit in lieu of the
sworn statement, those provisions prevail over the procedure contemplated
under Section 200 of Cr.P.C. The object of enquiry envisaged under Section
200 of Cr.P.C. is to verify the truth or falsehood of the averments made in
the complaint and to find out whether there is primafacie material or
evidence in support of the complainant to issue Process against an accused
and nothing more than that. And that object is fulfilled by the documents
filed with such complaints for offence under Section 138 of N.I. Act. So
examination or non-examination of the complainant and his witnesses, if
any, on oath has no such effect on the enquiry in respect of the complaints
filed for offence under Section 138 of N.I. Act. The interest of the accused is
well protected under Section 145(2) of the N.I. Act inasmuch as the accused
can call for the complainant or any witnesses for being cross-examined. The
procedure followed by the Court at the stage of Section 200 Cr.P.C. or prior
to the stage of Section 203 or 204 Cr.P.C., would be nothing but ‘enquiry’.
Thus what is recorded during the course of preliminary enquiry can be
regarded as ‘preliminary evidence’. Section 145 of the N.I. Act is inserted
with the avowed object of dispensing with the preliminary evidence of the
complainant in order to have speedy trial. In this view of the matter, we
have no hesitation in our mind but to conclude that the affidavits of the
complainant/his witnesses may be received under Section 200 of Cr.P.C. The
affidavits so received may be termed as ‘pre-summoning evidence’. As postsummoning evidence can be received in the form of affidavit of the
complainant or his witnesses under Section 145 of the N.I. Act, there is no
reason to debar the filing of affidavits at the pre-summoning stage.
29. In view of the above, we answer the referred question as under:
“Having regard to the amendment to the Negotiable Instruments Act,
1881 Act, brought about by the amending Act 55/2002, and the
statement of objects and reasons thereto, with effect from 6.2.2003,
whereby Sections 143 to 147 are inserted, recording of a sworn
statement by the Magistrate as required under Section 200 Cr.P.C. is not
mandatory in respect of the proceedings instituted for an offence
punishable under Section 138 of the Negotiable Instruments Act, 1881.
The recording of the sworn statement may be dispensed with and the
affidavit may be received in lieu of a sworn statement”.
Place the records before the Learned Single Judge to proceed further in
Criminal Revision Petition No. 2604/2012 on merits.
———
1.
(2010) 3 SCC 83
2.
(2000) 2 SCC 745
3.
AIR 1960 SC 1113
4.
2005 (1) KLJ 135
5.
LAWS (KAR)-2009-7-89 : ILR 2009 KAR 3477
6.
LAWS (MAD) 2008-1-396, Crl.O.P. Nos. 8863/2005 and 8864/2005
decided on 01.01.2008
7.
(2009) 1 SCC 407 : LAWS (SC)-2008-11-153
8.
ILR(MP)-2009-0-3032
9.
ILR 2005 KAR 2890
10.
Crl. W.P. No. 2523/2010
11.
2005 I OLR 586, decided on 30th March, 2005.
12.
ILR 2004 KAR 4381