Orissa High Court
P.Mallikarjun Rao vs Managing Director on 18 February, 2022
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLMC No.2542 of 2011
P.Mallikarjun Rao .... Petitioner
Mr. P.K.Khuntia, Advocate
-Versus-
Managing Director, Orissa State Co- .... Opp. Parties
operative Bank Ltd.
Mr. M.K.Panda, ASC
CORAM:
JUSTICE R.K.PATTANAIK
ORDER
Order No. 18.02.2022
05. 1. The petitioner invoking the jurisdiction of the Court under
Section 482 of Criminal Procedure Code, 1973 (hereinafter referred
to as 'the Cr. P.C.') has assailed the impugned order dated 22nd
March, 2011 passed in I.C.C. No.250 of 2011 by the learned
S.D.J.M, (Sadar), Cuttack for having taken cognizance of the
offence punishable under Section 138 of the Negotiable Instrument
Act, 1881 (shortly 'N.I. Act') solely on the ground that due process
was not followed as required under law and therefore, it is liable
to be quashed.
2. Facts leading to the instant case are as follows. The
complainant opposite party filed ICC No.250 of 2011 stating
therein that the petitioner after enrolling himself as a member of
the Bank applied for a loan of Rs.5 lac in the year 2010 which was
sanctioned in his favour but after availing the loan, he neglected
the pay the regular installments for which the loan account became
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overdue and in that connection, towards part payment of
outstanding loan amount, the petitioner issued an account payee
cheque bearing No.835764 for an amount of Rs.5,04,472/- dated
31.01.2011 drawn on Andhra Bank, Main Branch, Cuttack which
when was presented for encashment, bounced back and since the
cheque amount was not paid despite notice, the complaint was
filed supported by an affidavit, whereupon, the learned court
below took cognizance of the offence under Section 138 of the N.I.
Act. Against the order of cognizance dated 22.03.2011, the
petitioner has approached the Court seeking it to be quashed on
the solitary ground that the learned court below did not record the
initial statement of the authorized representative of the Bank in
terms of Section 200 Cr. P.C. before taking cognizance under
Section 138 of the N.I. Act which was based on an affidavit only.
3. Mr. M.K.Panda, learned counsel for the opposite party
contends that the learned court below rightly proceeded on
receiving the affidavit from the opposite party complainant which
is in accordance with Section 145 of the N.I. Act as there is no
mandatory requirement to record initial statement under Section
200 Cr.P.C. and inquiry under Section 202 Cr.P.C. as is normally
resorted to in general complaints. It is further contended that the
law has now been well settled that on the strength of an affidavit,
a Magistrate can proceed taking cognizance under Section 138 of
the N.I. Act, as he is not mandatorily obliged to call upon the
complainant or to examine the complainant or witnesses on oath
for taking the decision whether or not to issue process on such
complaint. In support of such contention, Mr. P.K. Khuntia relied
upon following decisions, such as, Banamali Behera Vs. Nirupama
Pal: 2017 (I) OLR 178; A.C. Narayanan Vs. State of Maharashtra
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and another: 2013 (II) OLR (SC) 884; and K.S. Joseph Vs. Philips
Carbon Black Ltd. and others: AIR 2016 SC 2149 in order to
contend that the learned court below was not mandatorily
required to examine the complainant through its representative for
the purpose of taking cognizance under Section 138 N.I. Act.
4. Mr. P.K.Khuntia, learned counsel for the petitioner, on the
other hand, cited a judgment of Rajasthan High Court in Prakash
Chand Vs. State of Rajasthan and another reported in
2010(1)D.C.R. 172 and submitted that the order of cognizance
under Section 138 N.I. Act since not preceded by examination of
the complainant under Section 200 Cr.P.C. and thereafter,
followed by an inquiry, it is not sustainable and thus, bad in law.
5. In Banamali Behera (supra), this Court by referring to the
case of A.C. Narayanan ibid held that in the light of Section 145 of
the N.I. Act, there is no obligation for a Magistrate to record the
statement of the complainant under Section 200 Cr.P.C. before
passing an order of cognizance. The Supreme Court in A.C.
Narayanan and K.S. Joseph (supra) stated to have laid the law to
the effect that a Magistrate may proceed in taking cognizance
without examining the complainant under Section 200 Cr.P.C. on
the basis of the contents of the complaint, documents in support
thereof and an affidavit submitted by the complainant justifying the
complaint. In K.S. Joseph case, the Supreme Court held that 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. It is
further held therein that in the case of Mandavi Co-operative Bank
Ltd. Vs. Nimesh B. Thakore reported in (2010) 3 SCC 83, the
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Supreme Court discussed in detail the amendment of 2002
including Section 145 of the N.I. Act and also noted the Statement
of Objects and Reasons appended to the Amendment Bill and held
that inter alia, the objects included 'to prescribe procedure for
dispensing with preliminary evidence of the complainant'. In so far
as, the decision of Rajasthan High Court in Prakash Chand case is
concerned, a contrary view was taken by stating that the scheme
and provisions of Sections 142 to 146 of the N.I. Act goes to show
that there is no indication that recording of the statement of the
complainant under Section 200 Cr.P.C. is to be dispensed with. It is
held that Section 145 relates to post cognizance stage and
furthermore, not mandatory in nature for the reason that the
legislature in its wisdom has used the word 'may' therein. Such a
conclusion of Rajasthan High Court cannot any more be endorsed
in view of the aforesaid decisions of the Supreme Court one of
which has been referred to by this Court in Banamali Behera case.
6. In view of the above discussion, the Court is of the humble
opinion that the contention of the petitioner that the order of
cognizance dated 22nd March, 2011 to be untenable in law on the
ground so raised must have to be rejected. As a necessary corollary,
the learned court below cannot be said to have committed any
error or illegality in taking cognizance under Section 138 of the N.I.
Act on receiving a complaint accompanied with an affidavit which
is in accordance with law and therefore, does not require any
interference.
7. Accordingly, it is ordered.
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8. In the result, the petition filed under Section 482 Cr.P.C. at
the best of the petitioner stands dismissed. Consequently, the order
of stay dated 2nd January, 2012 stands vacated.
9. A copy of the above order be sent to the learned court
below forthwith in order to facilitate early disposal of I.C.C. Case
No.250 of 2011.
(R.K. Pattanaik)
Judge
TUDU
