Rajasthan High Court - Jodhpur

Mahaveer vs State Of Rajasthan on 16 September, 2022

Bench: Pushpendra Singh Bhati

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc(Pet.) No. 6142/2021

Mahaveer S/o Gopilal Gurjar, Aged About 35 Years, R/o Village Mokhampura, Post Kanwasal, Tehsil Asind, District Bhilwara.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Ramlal Gurjar S/o Shriram Gurjar, R/o Village Mokhampura, Post Kanwasal, Tehsil Asind, District Bhilwara.

----Respondents Connected With S.B. Criminal Misc(Pet.) No. 1204/2021 Mahaveer S/o Gopilal Gurjar, Aged About 35 Years, R/o Village Mokhampura, Post Kanwasal, Tehsil Asind, Dist. Bhilwara.

----Petitioner Versus

1. State, Through Pp

2. Ramlal Gurjar S/o Shriram Gurjar, R/o Village Mokhampura, Post Kanwasal, Tehsil Asind, Dist. Bhilwara.

                                                                  ----Respondents


For Petitioner             :     Mr. Abhishek Mehta
For Respondents            :     Mr. A.R. Choudhary, P.P.
                                 Mr. Pappa Ram Kumawat

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 14/09/2022 Pronounced on 16/09/2022

1. This Criminal Misc. Petitions under Section 482 Cr.P.C. have

been preferred claiming the following reliefs:

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In S.B. Criminal Misc(Pet.) No. 6142/2021:-

"It is, therefore, respectfully prayed that the instant misc. petition be kindly allowed this Hon'ble Court may be pleased to set aside the order dated 18.09.2021 passed by Special Judicial Magistrate (NI Act Cases) No. 3, Bhilwara in Case No. 4878/2017 and the trial court be directed to take the statement affidavit of the petitioner on record and treat the same as the statement of the petitioner.

Any other appropriate write, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case may also be granted in favour of the Petitioner, during the pendency of the present petition in the Hon'ble Court."

In S.B. Criminal Misc(Pet.) No. 1204/2021:-

"It is, therefore, respectfully prayed that the instant misc. petition be kindly allowed this Hon'ble Court may be pleased to set aside the order dated 29.1.2021 passed by Special Judicial Magistrate (NI Act Cases) No. 3, Bhilwara in Case No. 4878/2017 and the trial court be directed to summon witness no. 1 and 2 in the list of witnesses produced by the petitioner.

Any other appropriate writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case may also be granted in favour of the Petitioner, during the pendency of the present petition in this Hon'ble Court."

2. Brief facts of the case as placed before this Court by learned

counsel for the petitioner are that the respondent no.2 lodged a

complaint under Section 138 of the Negotiable Instruments Act,

1881 against the petitioner for dishonor of a cheque issued by him

in the year 2016. And that, the charges for the said offences were

framed against the accused-petitioner and the trial accordingly

begun.

3. Learned counsel for the petitioner submitted that thereupon

the respondent no. 2 produced himself as a prosecution witness

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and thereafter none of the prosecution witnesses were called for,

and the prosecution evidence was closed; thereafter, the petitioner

filed an application along with the list of the prosecution

witnesses, and prayed before the learned Court below to permit

him to submit his statement as a witness, on affidavit, as under

Section 145 (1) of the Act of 1881, which came to be summarily

dismissed vide the impugned order, dated 18.09.2021, which as

per learned counsel for the petitioner, was a non-speaking order.

4. Learned counsel for the petitioner further submitted that the

a bare perusal of the impugned order would reveal that the

learned Court below has erred in applying the ratio as laid down

by the Hon'ble Apex Court in the judgment of Indian Bank

Association & Ors. v. Union of India (2014) 5 SCC 590

wherein as per the learned counsel, it was categorically held that

while considering the earlier law that there is no bar on the

accused for submitting evidence on affidavit but only reasons

recorded in writing.

5. Learned counsel also drew the attention of this Court to the

judgment rendered by the Hon'ble High Court of Gujarat in the

case of Rakeshbhai Maganbhai Barot vs. State of Gujarat

(R/Special Criminal Application No. 3367 of 2018, decided

by the Hon'ble Gujarat High Court at Ahmedabad on 29.01.2019).

6. Learned counsel for the petitioner further submitted that the

examination of the prosecution witnesses in the trial before the

learned Court, is essential for the proper adjudication and

conclusion of the trial. Furthermore, the testimony of witnesses

no. 1 and 2 in the list so submitted was crucial, since a bare

perusal of the reply to the notice sent by the respondent no. 2

would reveal that the petitioner had given the details of the

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vehicles, in relation to which there was an oral agreement

between the parties, and the cheque book of the account in

question to the respondent no. 2, and therefore, the said question

could only be adjudicated upon, after examination of the said

witnesses.

7. On the other hand, learned Public Prosecutor as well as

learned counsel for the private respondent jointly opposed the

submissions made on behalf of the petitioner and submitted that

the learned Court below rightly passed the impugned order.

8. Heard learned counsel for both parties and perused the

record of the case, and the judgment cited at the Bar.

9. At the outset, this Court takes note of the judgments, cited

at the Bar, rendered by the Hon'ble Apex Court in the case of

Indian Bank Association (supra) and the Hon'ble High Court of

Gujarat in Rakeshbhai Maganbhai Barot (supra).

Relevant portions of the said judgments are reproduced as

hereunder:-

In Indian Bank Association (supra):-

"We notice, considering all those aspects, few High Courts of the country have laid down certain procedures for speedy disposal of cases Under Section 138 of the Negotiable Instruments Act. Reference, in this connection, may be made to the judgments of the Bombay High Court in KSL and Industries Ltd. v. Mannalal Khandelwal and The State of Maharashtra through the Office of the Government Pleader (2005) CriLJ 1201, Indo International Ltd. and Anr. v. State of Maharashtra and Anr. (2005) 44 Civil CC (Bom) and Harischandra Biyani v. Stock Holding Corporation of India Ltd. (2006) 4 MhLJ 381, the judgment of the Calcutta High Court in Magma Leasing Ltd. v. State of West Bengal and Ors. (2007) 3 CHN 574 and the judgment of the Delhi High Court in Rajesh Agarwal v. State and Anr. (2010) ILR 6 Del 610.

The scope of Section 145 came up for consideration before this Court in Mandvi Cooperative Bank Limited v. Nimesh B.

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Thakore (2010) 3 SCC 83, and the same was explained in that judgment stating that the legislature provided for the complainant to give his evidence on affidavit, but did not provide the same for the accused. The Court held that even though the legislature in their wisdom did not deem it proper to incorporate a word "accused" with the word "complainant" in Section 145(1), it does not mean that the Magistrate could not allow the accused to give his evidence on affidavit, unless there was just and reasonable ground to refuse such permission.

This Court while examining the scope of Section 145 in Radhey Shyam Garg v. Naresh Kumar Gupta (2009) 13 SCC 201, held as follows:

If an affidavit in terms of the provisions of Section 145 of the Act is to be considered to be an evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again. He may be cross-examined and upon completion of his evidence, he may be re-examined. Thus, the words "examine any person giving evidence on affidavit as to the facts contained therein, in the event, the deponent is summoned by the court in terms of Sub-section (2) of Section 145 of the Act", in our opinion, would mean for the purpose of cross examination. The provision seeks to attend a salutary purpose.

Considerable time is usually spent for recording the statement of the complainant. The question is whether the Court can dispense with the appearance of the complainant, instead, to take steps to accept the affidavit of the complainant and treat the same as examination-in-chief. Section 145(1) gives complete freedom to the complainant either to give his evidence by way of affidavit or by way of oral evidence. The Court has to accept the same even if it is given by way of an affidavit. Second part of Section 145(1) provides that the complainant's statement on affidavit may, subject to all just exceptions, be read in evidence in any inquiry, trial or other proceedings. Section 145 is a rule of procedure which lays down the manner in which the evidence of the complainant may be recorded and once the Court issues summons and the presence of the accused is secured, an option be given to the accused whether, at that stage, he would be willing to pay the amount due along with reasonable interest and if the accused is

(6 of 11) [CRLMP-6142/2021]

not willing to pay, Court may fix up the case at an early date and ensure day-to-day trial.

We have indicated that Under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the Court, which makes it clear that a complainant is not required to examine himself twice i.e. one after filing the complaint and one after summoning of the accused. Affidavit and the documents filed by the complainant along with complaint for taking cognizance of the offence are good enough to be read in evidence at both the stages i.e. pre-summoning stage and the post summoning stage. In other words, there is no necessity to recall and re-examine the complaint after summoning of accused, unless the Magistrate passes a specific order as to why the complainant is to be recalled. Such an order is to be passed on an application made by the accused or Under Section 145(2) of the Act suo moto by the Court. In summary trial, after the accused is summoned, his plea is to be recorded Under Section 263(g) Code of Criminal Procedure and his examination, if any, can be done by a Magistrate and a finding can be given by the Court Under Section 263(h) Code of Criminal Procedure and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence Under Section 138 of the Act is a document based offence. We make it clear that if the proviso (a), (b) & (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences.

Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases Under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:

DIRECTIONS:

(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day when the complaint Under Section 138 of the Act is presented, shall scrutinize the complaint and, if the complaint is accompanied by the affidavit, and the affidavit and the documents, if any, are found to be in order, take cognizance and direct issuance of summons.

(7 of 11) [CRLMP-6142/2021]

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest. (4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice Under Section 251 Code of Criminal Procedure to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused Under Section 145(2) for re-calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in- chief, crossexamination and reexamination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court."

In Rakeshbhai Maganbhai Barot (supra):-

"In KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), a Division Bench of the Bombay High Court in order to accomplish the underlying object of the Act, has issued certain directions, one of which reads as follows:-

"(b) The Court concerned must ensure that examination-in- chief, cross-examination and reexamination of the complainant must be concluded within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused

(8 of 11) [CRLMP-6142/2021]

must be available for cross-examination as and when there is direction to this effect by the Court."

(emphasis supplied) In M/s. Indo-International Ltd., vs. State of Maharashtra, (supra), the decision in KSL and Industries Ltd., vs. Mannalal Khandelwal (supra) has been relied upon and followed.

In Harischandra Biyani vs. Stock Holding Corporation of India Ltd. (supra), the Bombay High Court has again applied and followed the decision in KSL and Industries Ltd., vs. Mannalal Khandelwal (supra).

In Magma Leasing Ltd. vs. State of West Bengal (supra), there is a reference to KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), and the same has been referred to and relied upon in holding that Section 145 enables the accused or defence to lay evidence by affidavit.

In Rajesh Agarwal vs. State and another, (supra), again the decision in KSL and Industries Ltd., vs. Mannalal Khandelwal (supra), has been applied and the consistent view taken in these decisions has been approved and applied by the Supreme Court in direction no. 5, referred to hereinabove.

Hence, in keeping with judicial propriety, the later judgment of the Apex court can safely be applied when the divergent view is that of a co-ordinate bench of the same court."

In view of the above, this application stands allowed. The impugned order passed by the 3rd Additional Civil Judge, Himmatnagar, below application Exh. 128 in the Criminal Case No. 3145 of 2014 is quashed and set-aside. The application Exh. 128 filed by the applicant - accused is hereby allowed. The trial court shall permit the applicant - accused to tender his evidence including the evidence of his witnesses, if any, by way of affidavit. However, it need not be clarified that the accused and his witnesses must be available for cross-examination as and when they are directed by the trial court to appear for the same."

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10. This Court, on a perusal of the order impugned, finds that

the learned Court below has erred in applying the judgment

rendered by the Hon'ble Apex Court in the case Indian Bank

Association (supra) to the case at hand. A bare reading of the

relevant portion of the said judgment, as quoted hereinabove,

would reveal that the Hon'ble Apex Court issued certain directions,

after taking into due consideration a catena of judgments.

11. This Court, therefore, finds that the order impugned dated

18.09.2021 suffers from having incorrectly applied an extract of

the judgment rendered in the case of Indian Bank Association

(supra) and did not appreciate the judgment in its entirety.

Similarly, the judgment rendered by the Honb'le High Court of

Gujarat, in the case of Rakeshbhai Maganbhai Barot (supra)

was placed before the learned Court below, as the order impugned

would reveal, on behalf of the petitioner in support of his

submissions; but the same was not duly considered.

12. This Court, adverting to the facts and circumstances of the

present case, observes that the learned Court below incorrectly

held that the accused cannot make his statement through an

affidavit, but would have to be present in the Court for the same,

relying on Section 145 (2) of the Act of 1881, and the judgment of

Mandvi Coop. Bank Ltd. v. Nimesh B. Thakore (2010) 3 SCC

83 which was taken into consideration by the Hon'ble Court in

arriving at the conclusion in the case of Indian Bank

Association (supra).

13. This Court also takes note of the judgment rendered by the

Hon'ble Apex Court in the case of P. Mohanraj and Ors. Vs.

Shah Brothers Ispat Pvt. Ltd. (2021) 6 SCC 258 wherein the

following observations were made:-

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"Given these tests, it is clear that a Section 138 proceeding can be said to be a "civil sheep" in a "criminal wolf's" clothing, as it is the interest of the victim that is sought to be protected, the larger interest of the State being subsumed in the victim alone moving a court in cheque bouncing cases , as has been seen by us in the analysis made hereinabove of Chapter XVII of the Negotiable Instruments Act.

In Kaushalya Devi Massand v. Roopkishore Khore, (2011) 4 SCC 593, a Division Bench of this Court succinctly stated: "11. Having considered the submissions made on behalf of the parties, we are of the view that the gravity of a complaint under the Negotiable Instruments Act cannot be equated with an offence under the provisions of the Penal Code, 1860 or other criminal offences. An offence under Section 138 of the Negotiable Instruments Act, 1881, is almost in the nature of a civil wrong which has been given criminal overtones."

(emphasis supplied) (This is the clearest enunciation of a Section 138 proceeding being a "civil sheep" in a "criminal wolf's" clothing.)"

14. This Court, therefore, observes that an offence under Section

138 of the Act of 1881, which is in the nature of a civil wrong

which has been accorded criminal overtones; then accordingly, the

accused therein cannot be viewed as an accused under any other

criminal offence. And although, the Hon'ble Apex Court has, in

point 5 of the Directions issued in Indian Bank Association

(supra), not expressly used the word 'accused', this Court, in

light of the above made pronouncements and the judgment

rendered by the Hon'ble High Court of Gujarat in Rakeshbhai

Maganbhai Barot (supra), is inclined to allow the application

preferred before the learned court below by the petitioner herein.