TWO CONFLICTING DECISIONS ON SEC.145 OF NEGOTIABLE INSTRUMENTS ACT WHETHER RECORDING OF SWORN STATEMENT IS MUST = Section 138 of the Negotiable Instrument Act, 1881 (for brevity, 'the Act'). The docket order, dated 04.12.2009, shows that the sworn statement of the de facto complainant was received and the case was taken on file under Section 138 of the Act. The docket thus evidently shows that the sworn statement of the de facto complainant was not recorded. 3. Section 200 Cr.P.C. envisages that before a Magistrate takes cognizance of the offence on complaint, he shall examine the complainant on oath. Thus, examination of the complainant is sine quo non for taking a private complaint on file. Admittedly, the learned Judicial First Class Magistrate did not do so, but, accepted the sworn affidavit of the de facto complainant and had taken the case on file. taking the case on file by the learned Magistrate without recording the sworn statement of the complainant was violative of Section 200 Cr.P.C. and is not sustainable. 4. In that view of the matter, the criminal case is liable to be quashed. Accordingly, this Criminal Petition is allowed. C.C.No.460 of 2009 on the file of the learned II Additional Judicial First Class Magistrate, Ongole against the petitioner herein is quashed on the ground that the sworn statement of the de facto complainant/first petitioner had not been recorded by the trial Court. = NOT TOUCHED THE SCOPE OF THIS SEC.145. Evidence on affidavit. 1[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.] 1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003). = In the opinion of this Court, the said exercise expected to be done by the Magistrate at the stage of Section 200 Cr.P.C, is nothing short of recording evidence by way of sworn statement of the complainant. Section 145 of the Act provides for taking evidence of the complainant not only during trial of the case but also during any enquiry which may include pre-cognizance enquiry or pre-summons enquiry under Section 200 Cr.P.C. This Court finds that Section 145 of the Act is an exception to mode of recording sworn statement of the complainant by the Magistrate at the stage of Section 200 Cr.P.C.
PUBLISHED IN http://judis.nic.in/judis_andhra/filename=9736
THE HON'BLE SRI JUSTICE K.G.SHANKAR
CRIMINAL PETITION No.5557 of 2010
21.03.2013
P. Ravinder Reddy
Nalamalapur Subba Reddy and another
Counsel for the Petitioner: Sri K.Maheswara Rao Counsel for Respondent No.1:
Sri P.Veera Reddy.
Counsel for respondent No.2: The Public Prosecutor.
<Gist :
>Head Note:
?Cases referred:
ORDER:
There is no representation for the first respondent, although the first
respondent entered appearance. The learned counsel for the petitioner contended
that as the case offends Section 200 Cr.P.C., the petitioner is entitled to
acquittal.
2. The petitioner is the sole accused in C.C.No.460 of 2009 on the file of
the learned II Additional Judicial First Class Magistrate, Ongole for the
offence under
Section 138 of the Negotiable Instrument Act, 1881 (for brevity, 'the Act').
The docket order, dated 04.12.2009, shows that the sworn statement of the de
facto complainant was received and the case was taken on file under Section 138
of the Act. The docket thus evidently shows that the sworn statement of the de
facto complainant was not recorded.
3. Section 200 Cr.P.C. envisages that before a Magistrate takes cognizance of
the offence on complaint, he shall examine the complainant on oath. Thus,
examination of the complainant is sine quo non for taking a private complaint on
file. Admittedly, the learned Judicial First Class Magistrate did not do so,
but, accepted the sworn affidavit of the de facto complainant and had taken the
case on file. As rightly submitted by Sri E.Satish Kumar, learned counsel for
the petitioner, taking the case on file by the learned Magistrate without
recording the sworn statement of the complainant was violative of Section 200
Cr.P.C. and is not sustainable.
4. In that view of the matter, the criminal case is liable to be quashed.
Accordingly, this Criminal Petition is allowed. C.C.No.460 of 2009 on the file
of the learned II Additional Judicial First Class Magistrate, Ongole against the
petitioner herein is quashed on the ground that the sworn statement of the de
facto complainant/first petitioner had not been recorded by the trial Court.
The miscellaneous petitions pending, if any, shall stand closed.
__________________
K.G.SHANKAR, J
21st March, 2013
contra decision - not cited in the above case
In the opinion of this Court, the
said exercise expected to be done by the Magistrate at the stage of Section 200 Cr.P.C, is nothing short of recording evidence by way of sworn statement of the complainant.
Section 145 of the Act provides for taking evidence of the complainant not only during trial of the case but also during any enquiry which may include pre-cognizance enquiry or pre-summons enquiry under Section 200 Cr.P.C.
This Court finds that Section 145 of the Act is an exception to mode of recording sworn statement of the complainant by the Magistrate at the stage of Section 200 Cr.P.C.
published in http://judis.nic.in/judis_andhra/filename=7444
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
Criminal Petition No.2852 of 2009
07-10-2010
Sri Gayatri Devi Traders and another
The State of Andhra Pradesh, rep. by
Public Prosecutor and another
Counsel for the Appellants: Sri G.Rama Gopal
Counsel for the Respondent-1: Public Prosecutor
Counsel for the respondent-2 : Sri B.Devanand
:ORDER:
The petitioners 1 and 2/A-1 and A/2 are accused of offence punishable
under Section 138 of the Negotiable Instruments Act (in short, the Act) in C.C.
No.471 of 2007 on the file of II Additional Chief Metropolitan Magistrate,
Visakhapatnam. The only point raised in this petition is with regard to
procedure adopted by the lower Court before taking cognizance of the case for
the above offence by way of receipt of evidence affidavit of the complainant/2nd
respondent instead of recording sworn statement of the complainant by the Court
and obtaining signature of the complainant therein.
This Court previously held
in A.V.R.Murthy V. Nunna Venkata Ravanamma1
that such procedure adopted by the
Magistrate before taking cognizance of the case for offence punishable under
Section 138 of the Act is valid and legal in view of specific provision by way
of Section 145 contained in the Act.
The petitioners' counsel contended that
the above decision rendered by this Court is liable to be reconsidered by this
Court in view of prior pronouncements of the Supreme Court.
2) Sheet anchor of the petitioners' contention is National Small
Industries Corporation Limited V. State(NCT of Delhi)2. The question decided by
the Apex Court therein was not pre-cognizance enquiry or pre-summons enquiry in
a case relating to offence punishable under Section 138 of the Act. The
question decided therein was that where a incorporeal body is the payee and the
employee who represents such an incorporeal body in the complaint is a public
servant, he being the defacto-complainant, clause (a) of the proviso to Section
200 Cr.P.C will be attracted and consequently the Magistrate need not examine
the complainant and the witnesses (see para 20 of the report). While deciding
that question, the Supreme Court made references to not only provisions of the
Act, but also the Code of Criminal Procedure relating to procedure to be adopted
by the criminal Court before taking cognizance of a case for offence punishable
under Section 138 of the Act in case the complaint is presented by a Government
servant representing an incorporeal body. The Supreme Court had no occasion
either in National Small Industries Corporation Limited (1 supra) or in any
other reported decision to consider effect of Section 145 of the Act on Section
200 Cr.P.C.
3) Section 200 Cr.P.C. reads as follows:
"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".
Thus, a Magistrate under general law, for taking cognizance of an offence
on complaint, has to examine the complainant and witnesses present if any on
oath and reduce substance of such examination to writing and has to obtain
signatures of the complainant and the witnesses and thereafter has to certify
the same by the Magistrate. But, special provision contained in Section 145(1)
of the Act reads as follows:
"(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".
4) Placing reliance on Pankajbhai Nagjibhai Patel V. State of Gujarat3 of
the Supreme Court and Maharaja Developers V. Udaysingh Pratapsinghrao Bhonsle4
of the Bombay High Court, it is contended by the petitioners' counsel that non-
obstante clause contained in Section 145(1) of the Act can be made applicable
only in respect of specific situations contained therein and that it cannot be
read as excluding entire provisions of the Code of Criminal Procedure relating
to other fact situations also. This Court never intended to exclude other
provisions of the Code of Criminal Procedure, 1973 while taking cognizance of
offence punishable under Section 138 of the Act.
This Court is of the opinion
that the above procedure prescribed under Section 200 Cr.P.C for taking
cognizance of a case under general criminal law cannot be made applicable to
taking cognizance of an offence punishable under Section 138 of the Act, having
regard to special provision contained under Section 145 of the Act.
Section 145
of the Act provides for taking evidence of the complainant on affidavit and
subject to all just exceptions be read in evidence in any inquiry, trial or
other proceeding under the Code of Criminal Procedure.
5) Section 2(g) Cr.P.C. defines 'inquiry' as follows:
"(g) "inquiry" means every inquiry, other than a trial, conducted under
this Code by a Magistrate or Court"
Not only from 2(g) Cr.P.C, but also from language employed in Section 145
of the Act which makes the said provision applicable to enquiries as well as
trials, it follows that evidence of the complainant may be given by him on
affidavit and it can be read as such during any enquiry including pre-cognizance
or pre-summons enquiry conducted as per Section 200 Cr.P.C in lieu of recording
statement of the complainant on oath (sworn statement) and obtaining signature
of the complainant therein and the Magistrate certifying the same. The fact
that oath has to be administered to the complainant and substance of statement
of the complainant has to be recorded by the Magistrate into writing and
signature of the complainant has to be obtained in that statement recorded on
oath and the Magistrate has to certify the same at the end, denotes that the
entire procedure contemplated under Section 200 Cr.P.C is nothing but recording
evidence of the complainant at the time of taking cognizance and in the absence
of the accused before the Court; the only exception being that since the accused
will not be present before the Court at that stage, he may not have right to
cross-examine the complainant at that stage.
In the opinion of this Court, the
said exercise expected to be done by the Magistrate at the stage of Section 200 Cr.P.C, is nothing short of recording evidence by way of sworn statement of the complainant.
Section 145 of the Act provides for taking evidence of the complainant not only during trial of the case but also during any enquiry which may include pre-cognizance enquiry or pre-summons enquiry under Section 200 Cr.P.C.
This Court finds that Section 145 of the Act is an exception to mode of recording sworn statement of the complainant by the Magistrate at the stage of Section 200 Cr.P.C.
In that view of the matter, this Court finds that decision
of this Court rendered in A.V.R.Murthy(1 supra) does not require re-
consideration.
6) In the result, the Criminal Petition is dismissed.
?1 2010(1) ALD(Crl.)990 (AP)
2 (2009)1 Supreme Court Cases 407
3 (2001)2 Supreme Court Cases 595
4 2007 Crl.L.J 2207
THE HON'BLE SRI JUSTICE K.G.SHANKAR
CRIMINAL PETITION No.5557 of 2010
21.03.2013
P. Ravinder Reddy
Nalamalapur Subba Reddy and another
Counsel for the Petitioner: Sri K.Maheswara Rao Counsel for Respondent No.1:
Sri P.Veera Reddy.
Counsel for respondent No.2: The Public Prosecutor.
<Gist :
>Head Note:
?Cases referred:
ORDER:
There is no representation for the first respondent, although the first
respondent entered appearance. The learned counsel for the petitioner contended
that as the case offends Section 200 Cr.P.C., the petitioner is entitled to
acquittal.
2. The petitioner is the sole accused in C.C.No.460 of 2009 on the file of
the learned II Additional Judicial First Class Magistrate, Ongole for the
offence under
Section 138 of the Negotiable Instrument Act, 1881 (for brevity, 'the Act').
The docket order, dated 04.12.2009, shows that the sworn statement of the de
facto complainant was received and the case was taken on file under Section 138
of the Act. The docket thus evidently shows that the sworn statement of the de
facto complainant was not recorded.
3. Section 200 Cr.P.C. envisages that before a Magistrate takes cognizance of
the offence on complaint, he shall examine the complainant on oath. Thus,
examination of the complainant is sine quo non for taking a private complaint on
file. Admittedly, the learned Judicial First Class Magistrate did not do so,
but, accepted the sworn affidavit of the de facto complainant and had taken the
case on file. As rightly submitted by Sri E.Satish Kumar, learned counsel for
the petitioner, taking the case on file by the learned Magistrate without
recording the sworn statement of the complainant was violative of Section 200
Cr.P.C. and is not sustainable.
4. In that view of the matter, the criminal case is liable to be quashed.
Accordingly, this Criminal Petition is allowed. C.C.No.460 of 2009 on the file
of the learned II Additional Judicial First Class Magistrate, Ongole against the
petitioner herein is quashed on the ground that the sworn statement of the de
facto complainant/first petitioner had not been recorded by the trial Court.
The miscellaneous petitions pending, if any, shall stand closed.
__________________
K.G.SHANKAR, J
21st March, 2013
contra decision - not cited in the above case
In the opinion of this Court, the
said exercise expected to be done by the Magistrate at the stage of Section 200 Cr.P.C, is nothing short of recording evidence by way of sworn statement of the complainant.
Section 145 of the Act provides for taking evidence of the complainant not only during trial of the case but also during any enquiry which may include pre-cognizance enquiry or pre-summons enquiry under Section 200 Cr.P.C.
This Court finds that Section 145 of the Act is an exception to mode of recording sworn statement of the complainant by the Magistrate at the stage of Section 200 Cr.P.C.
published in http://judis.nic.in/judis_andhra/filename=7444
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU
Criminal Petition No.2852 of 2009
07-10-2010
Sri Gayatri Devi Traders and another
The State of Andhra Pradesh, rep. by
Public Prosecutor and another
Counsel for the Appellants: Sri G.Rama Gopal
Counsel for the Respondent-1: Public Prosecutor
Counsel for the respondent-2 : Sri B.Devanand
:ORDER:
The petitioners 1 and 2/A-1 and A/2 are accused of offence punishable
under Section 138 of the Negotiable Instruments Act (in short, the Act) in C.C.
No.471 of 2007 on the file of II Additional Chief Metropolitan Magistrate,
Visakhapatnam. The only point raised in this petition is with regard to
procedure adopted by the lower Court before taking cognizance of the case for
the above offence by way of receipt of evidence affidavit of the complainant/2nd
respondent instead of recording sworn statement of the complainant by the Court
and obtaining signature of the complainant therein.
This Court previously held
in A.V.R.Murthy V. Nunna Venkata Ravanamma1
that such procedure adopted by the
Magistrate before taking cognizance of the case for offence punishable under
Section 138 of the Act is valid and legal in view of specific provision by way
of Section 145 contained in the Act.
The petitioners' counsel contended that
the above decision rendered by this Court is liable to be reconsidered by this
Court in view of prior pronouncements of the Supreme Court.
2) Sheet anchor of the petitioners' contention is National Small
Industries Corporation Limited V. State(NCT of Delhi)2. The question decided by
the Apex Court therein was not pre-cognizance enquiry or pre-summons enquiry in
a case relating to offence punishable under Section 138 of the Act. The
question decided therein was that where a incorporeal body is the payee and the
employee who represents such an incorporeal body in the complaint is a public
servant, he being the defacto-complainant, clause (a) of the proviso to Section
200 Cr.P.C will be attracted and consequently the Magistrate need not examine
the complainant and the witnesses (see para 20 of the report). While deciding
that question, the Supreme Court made references to not only provisions of the
Act, but also the Code of Criminal Procedure relating to procedure to be adopted
by the criminal Court before taking cognizance of a case for offence punishable
under Section 138 of the Act in case the complaint is presented by a Government
servant representing an incorporeal body. The Supreme Court had no occasion
either in National Small Industries Corporation Limited (1 supra) or in any
other reported decision to consider effect of Section 145 of the Act on Section
200 Cr.P.C.
3) Section 200 Cr.P.C. reads as follows:
"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".
Thus, a Magistrate under general law, for taking cognizance of an offence
on complaint, has to examine the complainant and witnesses present if any on
oath and reduce substance of such examination to writing and has to obtain
signatures of the complainant and the witnesses and thereafter has to certify
the same by the Magistrate. But, special provision contained in Section 145(1)
of the Act reads as follows:
"(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".
4) Placing reliance on Pankajbhai Nagjibhai Patel V. State of Gujarat3 of
the Supreme Court and Maharaja Developers V. Udaysingh Pratapsinghrao Bhonsle4
of the Bombay High Court, it is contended by the petitioners' counsel that non-
obstante clause contained in Section 145(1) of the Act can be made applicable
only in respect of specific situations contained therein and that it cannot be
read as excluding entire provisions of the Code of Criminal Procedure relating
to other fact situations also. This Court never intended to exclude other
provisions of the Code of Criminal Procedure, 1973 while taking cognizance of
offence punishable under Section 138 of the Act.
This Court is of the opinion
that the above procedure prescribed under Section 200 Cr.P.C for taking
cognizance of a case under general criminal law cannot be made applicable to
taking cognizance of an offence punishable under Section 138 of the Act, having
regard to special provision contained under Section 145 of the Act.
Section 145
of the Act provides for taking evidence of the complainant on affidavit and
subject to all just exceptions be read in evidence in any inquiry, trial or
other proceeding under the Code of Criminal Procedure.
5) Section 2(g) Cr.P.C. defines 'inquiry' as follows:
"(g) "inquiry" means every inquiry, other than a trial, conducted under
this Code by a Magistrate or Court"
Not only from 2(g) Cr.P.C, but also from language employed in Section 145
of the Act which makes the said provision applicable to enquiries as well as
trials, it follows that evidence of the complainant may be given by him on
affidavit and it can be read as such during any enquiry including pre-cognizance
or pre-summons enquiry conducted as per Section 200 Cr.P.C in lieu of recording
statement of the complainant on oath (sworn statement) and obtaining signature
of the complainant therein and the Magistrate certifying the same. The fact
that oath has to be administered to the complainant and substance of statement
of the complainant has to be recorded by the Magistrate into writing and
signature of the complainant has to be obtained in that statement recorded on
oath and the Magistrate has to certify the same at the end, denotes that the
entire procedure contemplated under Section 200 Cr.P.C is nothing but recording
evidence of the complainant at the time of taking cognizance and in the absence
of the accused before the Court; the only exception being that since the accused
will not be present before the Court at that stage, he may not have right to
cross-examine the complainant at that stage.
In the opinion of this Court, the
said exercise expected to be done by the Magistrate at the stage of Section 200 Cr.P.C, is nothing short of recording evidence by way of sworn statement of the complainant.
Section 145 of the Act provides for taking evidence of the complainant not only during trial of the case but also during any enquiry which may include pre-cognizance enquiry or pre-summons enquiry under Section 200 Cr.P.C.
This Court finds that Section 145 of the Act is an exception to mode of recording sworn statement of the complainant by the Magistrate at the stage of Section 200 Cr.P.C.
In that view of the matter, this Court finds that decision
of this Court rendered in A.V.R.Murthy(1 supra) does not require re-
consideration.
6) In the result, the Criminal Petition is dismissed.
?1 2010(1) ALD(Crl.)990 (AP)
2 (2009)1 Supreme Court Cases 407
3 (2001)2 Supreme Court Cases 595
4 2007 Crl.L.J 2207
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