Bombay High Court
Gaurishankar Satyanarayan ... vs Yasin & Wasin Brothers Prop on 11 January, 2018
Bench: R. B. Deo
1 apeal143.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
CRIMINAL APPEAL NO. 143 OF 2004
Gaurishankar s/o Satyanarayan Agrawal,
Aged about 47 years,
Occupation - Business,
R/o Bose Nagar, Tumsar, Tahsil - Tumsar,
District - Bhandara. .... APPELLANT
VERSUS
Yasin & Wasin Brothers,
Proprietor Sheikh Ikbal Sheikh Sattar,
R/o Mata Ward, Tumsar, Tahsil - Tumsar,
District - Bhandara. .... RESPONDENT
______________________________________________________________
Shri Maheshwari, Advocate h/f. Shri S.V. Bhutada, Advocate for the
appellant,
None for the respondent.
______________________________________________________________
CORAM : ROHIT B. DEO, J.
DATE OF RESERVING THE JUDGMENT
: 04-10-2017
DATE OF PRONOUNCING THE JUDGMENT : 11-01-2018
JUDGMENT :
The accused is acquitted of offence punishable under
Section 138 of the Negotiable Instruments Act, 1881 ("Act" for short)
on the ground that the process issued was without recording the
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statement of the complainant on oath. It is this order passed by the
learned Judicial Magistrate First Class, Tumsar in Criminal Complaint
Case 539/1992 below Exhibit 62 which is assailed herein.
2. Exhibit 62 is an application moved by the accused for
dismissal of the complaint on the ground that the process is issued
without examining the complainant on oath. This application was
moved after the entire evidence of the complainant was recorded.
3. The learned Magistrate held that non-examination of the
complainant on oath as is contemplated under Section 200 of the
Criminal Procedure Code is not a mere irregularity but is an illegality.
The learned Magistrate allowed Exhibit 62 and passed the following
order :
"1. The application is allowed.
2. Process issued against the accused vide order dated
10-7-1997 is hereby recalled.
3. Complaint is dismissed.
4. Accused is hereby acquitted of the offence punishable
under Section 138 of the Negotiable Instruments Act.
5. His bail bond stands cancelled."
4. The issue is not res integra. In K.S. Joseph vs. Philips
Carbon Black Limited and another reported in (2016) 11 SCC 105,
3 apeal143.04
the Hon'ble Apex Court enunciated the law thus :
"3. So far as the issue of examination of the complainant
on solemn affirmation under Section 200 CrPC 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. 6-2-2003.
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 2974), 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 self-explanatory and overrules the requirement of
examination of the complainant on solemn affirmation under
Section 200 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 CrPC. This view is also supported by the
judgment of this Court in Mandvi Coop. Bank Ltd. v. Nimesh
B. Thakore. 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 para 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::, (SCC p.92)
5. In view of discussion made above, the plea based on
Section 200 CrPC is rejected as untenable. The other plea
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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 the appellant the notice was dated 3-2-2006
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 20-2-2006. The complaint was filed
on 24-5-2006. Prima facie, in view of the 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 the
complaint within the prescribed period."
5. In view of the settled legal position that in view of the non
obstante clause in sub-section (1) of Section 145 of the Act, it is not
necessary to examine the complainant on oath as is envisaged under
Section 200 of the Criminal Procedure Code, the order impugned is
unsustainable.
6. The order impugned dated 5-1-2004 is set aside. The
proceedings are remitted to the learned trial Magistrate who is
requested to final dispose of the complaint within a period of six
months from the date of receipt of the record. The record and
proceedings be sent back to the learned Magistrate forthwith.
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The appeal is allowed in the above terms.
JUDGE
adgokar
