(supra) and the Full Bench of this court in Rajesh Chalke (supra) makes it
clear that in the complaints under section 138 NI Act, the Magistrate is not
obliged to examine the complainant under section 200 Cr.PC and can rely
on affidavit filed along with the complaint. The Magistrate can take
cognizance and issue summons if upon scrutinizing the complaint, the
affidavit and the documents he is satisfied that prima facie offence has been
made out against the accused.
40. It is also pertinent to note that the Negotiable Instruments
(Amendment) Act, 2015 defines and restricts the territorial jurisdiction to a
court specified in Section 142 (2) (a) and (b) of the Act. The said issue of
territorial jurisdiction which has to be decided on the basis of the
documents, eliminates the need for further inquiry on jurisdictional issue.
It therefore follows that the Magistrate can arrive at the requisite
satisfaction about the essential ingredients of the offence including the
issue of territorial jurisdiction at the end of the enquiry under Section 200
Cr.P.C itself and this obviates the need of holding further enquiry under
Section 202 Cr.P.C. This being the position further enquiry under sub
section (1) of Section 202 of the Code, if held to be mandatory in
complaints filed under Section 138 N.I.Act, will be nothing but ritualistic,
idle and an empty formality.
41. It may be mentioned that the decision of the full bench of this court in
Rajesh Chalke (supra_ was not brought to the notice of the learned Single
Judge in Netcore (Cri. Writ Petition No. 138 of 2011). Similarly, the
decision of the Apex Court in M/s. Indian Bank Associates (supra) as well
as the decision of the full bench of this court in Rajesh Chalke were not
brought to the notice of the learned single judge in Vimal Powerloom
(supra). Consequently, the learned Single Judges of this Court had no
occasion to consider the principles laid down by the Apex Court as well as
the full bench of this Court in the aforesaid decisions. These two decisions
therefore cannot be considered as binding precedents. In any case, upon
consideration of the decision in Indian Banks Association (supra) and
Rajesh Chalke (supra) it would be appropriate to follow the decision in
Bansilal Kabra (supra), and Vinod vs. SBI Global (supra).
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 716 OF 2015
with
CRIMINAL APPLICATION NO. 717 OF 2015
Dr. (Mrs) Rajul Ketan Raj v/s. Reliance Capital Ltd. & Anr.
CORAM : SMT. ANUJA PRABHUDESSAI, J.
PRONOUNCED ON : 12th FEBRUARY, 2016.
Citation;2016 ALLMR(CRI)1224
2. The applicant, who is an accused no.1 in C.C.No.2995/SS/2013,
C.C.No.1348/SS/2012 and C.C.No.1350/SS/2012, has invoked the powers
of this court under Section 482 of Cr.P.C. for quashing the impugned orders
dated 24.4.2015 whereby the learned Sessions Judge, Gr. Mumbai,
dismissed the revision applications Nos.502 of 2014, 299 of 2014 and 101
of 2014 for quashing the process against the applicant for offence under
Section 138 of the Negotiable Instruments Act.
3. The brief facts necessary to decide these applications are as under:
The respondent no.1- complainant had filed complaints against the
applicant, one Mr. Ketan Raj and Jeevandeep Hospital & Critical Care
Centre (hereinafter referred to as Jeevandeep Hospital) for offence under
Section 138 of the Negotiable Instruments Act. It is alleged that the
applicant and the other two accused were in need of finance and had
therefore approached the complainant company with a request to grant
medical equipment loan facility. After considering the said request and
upon execution of various documents, the complainant company disbursed
the loan.
4. The applicant had issued a cheque dated 10.9.2013 for Rs.97,962/-
(subject matter of CC/2995/SS/2013), two cheques dated 1.5.2012 for
Rs.2,13,552 and Rs.2,03,280/- (subject matter of CC/1348/2012) and a
cheque dated 1.5.2012 for Rs.91218/- (subject matter of CC/1350/2012) in
favour of the complainant towards repayment of the loan. The said cheques
were dishonoured with remark “account closed”. The complainant company
issued demand notices and called upon the applicant and the other accused
to repay the loan amount. The applicant and the other accused having failed
to pay the cheque amount, the complainant company filed the afore stated
complaints for offence under Section 138 of the Negotiable Instruments
Act.
5. The learned Magistrate by orders dated 11.7.13 and 13.11.2013
issued process against the applicant and the other two accused for offence
under Section 138 of the Negotiable Instruments Act. The applicant herein
had challenged the said orders before the Court of Sessions, Greater
Mumbai. The revision applications came to be dismissed by the impugned
orders dated 24.4.2015. Being aggrieved by the said orders, the applicant
has invoked the jurisdiction of this court under Section 482 of Cr.P.C. for
quashing the said orders dated 24.4.2015 as well as the orders of issuance
of process.
6. Mr.Ramsinghani, the learned Counsel for the applicant has submitted
that the subject cheques were drawn on the account maintained by the
accused no.3 Jeevandeep Hospital, a proprietorship concern and not on the
account maintained by the applicant accused no.1. The learned Counsel for
the applicant has further submitted that the applicant is neither a
proprietress of the accused no.3 Jeevandeep Hospital nor the drawer of the
subject cheques, but she had signed the cheques only as an authorized
signatory of the accused no.3 Jeevandeep Hospital. The learned Counsel
for the applicant therefore contends that the applicant is not liable to be
prosecuted for the offence under Section 138 of the Negotiable Instruments
Act. In support of these contention he has relied upon the decisions in the
case of (i) Bimal Singh Kothari v. State of Goa [2008(1) Mh.L.J. 841] and
(ii) Aparna Shah v. Sheth Developers Pvt. Ltd. [2013(4) Bom. C.R. 879
(SC)].
7. Ms. Rajani, the learned Counsel for the respondent submitted that the
applicant herein was the first borrower of the said loan and that the loan
application shows that the applicant runs the said Jeevandeep Hospital.
The learned Counsel for the respondent has further stated that the loan
account statement is in the name of the applicant herein. Furthermore, the
applicant no.1 being the principal borrower as well as the drawer of the
cheques is liable under the provisions of Section 138 of the Negotiable
Instruments Act.
8. I have considered the submissions advanced by the learned counsels
for the respective parties. At the outset it may be mentioned that the
complaint is not filed under Section 141 of N.I.Act and the applicant herein
and one Ketan (A2) are not prosecuted either as the directors or partners of
the accused no.3 Jeevandeep Hospital. The complaint is filed under section
138 N.I.Act with allegations that the cheques issued by the applicant
accused towards repayment of medical equipment loan were dishonoured
and that the applicant accused had not paid the said amount despite the
statutory notices.
9. Relying upon Raman v. Krishna Pharmaceutical Distributors
[(1994) CCR 1601 (Madras HC)] and Satish Jayantilal Shah v. Pankaj
Mashruwala [1996 CRI.L.UJ. 3099 (Guj.H.C.)], the learned Counsel for
the applicant submits that the proprietary concern not being a juristic person
cannot be prosecuted.
10. In Raman (supra) and Satish Jayantilal Shah (supra) it has been held
that a proprietary concern not being a legal and juristic entity, it cannot
initiate any proceedings nor can any proceedings be initiated against it, and
it is only the proprietor who can either indict or be indicted. There is no
dispute about this settled proposition. It is however to be noted that Ketan
Raj and Jeevandeep Hospital have neither challenged the order of issuance
of process nor they are parties to these proceedings. The orders of issuance
of process are challenged by the applicant herein on the ground that she was
not the drawer of the cheque. Hence, the only question which falls for
determination is whether the applicant herein is liable to be prosecuted
under Section 138 of the N.I.Act.
11. At this stage it is advantageous to refer to the decision of the Apex
Court in Aparna Seth vs. Sheth Developers [2013(4) Bom CR 829]
wherein the Apex Court has held that under Section 138 of the N.I.Act, it is
only the drawer of the cheque who can be prosecuted. The Apex Court has
further held that under Section 138 of the Negotiable Instruments Act, in
case of issuance of cheque of joint accounts, the joint account holder cannot
be prosecuted unless the cheque has been signed by each and every person
who is a joint account holder. The Apex Court has further held that the
culpability attached to dishonour of a cheque can, in any case “except in
case of Section 141 of the N.I.Act” be extended to those on whose behalf
the cheque is issued. The Apex Court has reiterated that it is only the
drawer of the cheque who can be made an accused in any proceeding under
Section 138 of the N.I.Act.
12. In the instant case, the applicant is undisputedly a signatory to the
subject cheques. The said cheques were drawn on account
No.501906010250031 in Vijaya Bank, Mumbai in the name of Jeevandeep
Hospital, and the applicant herein had signed the same as an authorized
signatory of Jeevandeep Hospital. It is in these circumstances that the
applicant has claimed that she is not a drawer of the cheques and hence not
liable to be prosecuted for the offence under section 138 N.I.Act.
13. In this regard it is pertinent to note that the averments in the
complaint vis-à-vis the loan agreement, which is an uncontroverted
document, reveals that the applicant herein and Ketan were in need of
finance and had approached the complainant company with a request to
grant medical equipment loan facility. The applicant and Ketan had
executed the required documents whereupon the complainant company had
sanctioned the loan to the applicant and Ketan. In the said loan application
the applicant had given her professional details as ‘self employed’ and the
business name was given as 'Jeevandeep Hospital' which was specified as
own 'individual business'. The loan agreement was signed by the applicant
as a borrower and by Ketan as a co-borrower. The applicant had also signed
the demand promissory note to pay the loan amount with interest. The
complainant has also placed on record the loan account statement, a perusal
of which clearly indicates that the said loan account is in the name of the
present applicant.
14. It is pertinent to note that in Bimal Singh (supra) the cheques were
issued on an account maintained by the company which is a distinct entity.
No notice was given to the company and the company was not arrayed as
an accused. Under these circumstances, it was held that no process could
have been issued against the accused only because he had signed the
cheque on behalf of the company as an authorized signatory.
15. In the instant case the applicant had not applied for and availed the
loan as an authorized signatory of Jeevandeep Hospital. She had also not
signed the demand promissory note as an authorized signatory of
Jeevandeep Hospital. On the contrary the records prima facie indicate that
the applicant and Ketan had applied for and availed the loan in their
individual capacity. Furthermore the applicant had signed the demand
promissory note and had thereby agreed to repay the said loan and had
accordingly issued the subject cheques towards repayment of the said loan.
Under these circumstances, the mere fact that the applicant had issued the
cheques on the account of Jeevandeep Hospital, which is not a legal entity
and only a business concern of the applicant, would not prima facie indicate
that the applicant is not a drawer of the cheque. The records prima facie
indicate that the applicant had issued the said cheques towards discharge of
her personal liability. Hence, the principles laid down in Bimal Singh are
not applicable to the facts of the present case.
16. The uncontroverted assertions made in the complaint as well as the
documents produced in support thereof prima facie disclose the essential
ingredients of the offence under Section 138 of the N.I.Act qua the
applicant. Suffice it to say that the court in exercise of its jurisdiction under
Section 482 of Cr.P.C. cannot go into the truth or otherwise of the
allegations made in the complaint or delve into the disputed question of
facts. The issues raised by the applicant by way of defence can be
canvassed before the trial court and the same will have to be adjudicated on
merit of the case and not at this stage.
17. The learned Counsel for the applicant has further submitted that the
learned Magistrate has issued the process without complying with the
mandatory provisions of Section 202 Cr.P.C. He has placed reliance upon
(i) Vijay Dhanuka v. Najima Mamtaj [2014 ALL MR (Cri.) 1924 (SC)],
(ii) Netcore Solutions Pvt. Ltd. v. Pinnacle Teleservices Pvt. Ltd. [2013
ALL MR (Cri.) 1377[, (iii) Vimal Powerloom v. Ravi Agency [2014 ALL
MR (Cri) 1696] and (iv) Chandrakant Tanhaji Pawar v. State of
Maharashtra [2014 ALL MR (Cri) 1059] .
18. Before analysing the contentions raised by the learned counsel for the
applicant and referring to the judgments cited in support thereof, it would
be pertinent to embark upon the relevant provisions of Sections 200 and
202 of the Code of Criminal Procedure, 1873, which reads 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.
202. Postponement of issue of process:
(1) Any Magistrate, on receipt of a complaint of an offence
which he is authorised to take cognizance or which has
been made over to him under section 192, may, if he thinks fit,
1[and shall, in a case where the accused is residing at a
place beyond the area in which he exercises his jurisdiction].
postpone the issue of process against the accused,
and either inquire into the case himself or direct an investigation
to be made by, a police officer or by such other person
as he thinks fit, for the purpose of deciding whether or
not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be
made, -
(a) Where it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of Sessions
or
(b) Where the complaint has not been made by a court, unless
the complainant and the witnesses present (if any)
have been examined on oath under Section 200.
(2) In an inquiry under sub-section (1), the Magistrate may,
if he thinks fit, take evidence of witness on oath:
Provided that if it appears to the Magistrate that the offence
complained of is triable exclusively by the Court of
Session, he shall call upon the complainant to produce all
his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a
person not being a police officer, he shall have for that investigation
all the powers conferred by this Court on an offer
in charge of a police station except the power to arrest
without warrant.
19. The object of Section 200 is to test whether the complaint makes out
sufficient ground for the purpose of issuing process. The amended subsection
(1) of Section 202 Cr.P.C makes it obligatory upon the Magistrate
that before summoning the accused residing beyond his jurisdiction he shall
enquire into the case himself or direct investigation to be made by a police
officer or such other person as he thinks fit, for finding out whether or not
there is sufficient ground to proceed against the accused. The object of such
inquiry is to ensure that innocent persons residing beyond the jurisdiction
of the Magistrate are not harassed by unscrupulous persons by filing false
or vexatious complaints. It casts a duty on the magistrate to arrive at a
prima facie satisfaction whether or not there is sufficient ground to proceed
against the accused residing beyond his jurisdiction.
20. The Apex Court in Vijay Dhanuka (supra), while considering the
scope of the section has held that Section 202 of Cr.P.C. inter alia,
contemplates postponement of the issue of the process “in a case where the
accused is residing at the place beyond the area in which he exercises his
jurisdiction” and thereafter to either enquire into the case by himself or
direct an investigation to be made by a police officer or by such other
person as he thinks fit. The Apex Court has held that the amendment of
Section 202 Cr.P.C. was necessitated as false complaints were filed against
persons residing at far off places in order to harass them. Considering the
purpose for which the amendment has been brought, the Apex Court held
that an inquiry or the investigation, as the case may be, is mandatory before
summons are issued against the accused living beyond the territorial
jurisdiction of the Magistrate.
21. In the case of Chandrakant Tanaji Pawar (supra) this court had set
aside the order of issuance of process for offence under Section 494 and
495 r/w. 109 of IPC for not holding an enquiry under Section 202 and had
directed the Magistrate to deal with the complaint in accordance with law
keeping in mind the provisions of Section 202 of Cr.P.C.
22. It is pertinent to note that in Bansilal S. Kabra v. Global Trade
Finance Ltd. [2010 ALL MR (Cri) 3168] this Court (V.M.Kanade, J.) while
considering the applicability of the provisions of Section 202 of Cr.P.C. to
the complaints filed under Section 138 of the N.I.Act this court has held
that the inquiry which has to be made in complaint filed under Section 138
N.I.Act is very limited to certain documents and averments in the
complaint. It is held the mandate of Section 202 of Cr.P.C. if made
applicable to the complaints filed under Section 138 of N.I.Act would
defeat the very purpose behind the enactment of Section 138 of the N.I.
Act. Thus, upon considering and analyzing the object and ambit of Section
138 of the N.I.Act vis-à-vis the object of sub-section (1) of Section 202 of
Cr.P.C. the learned Judge of this Court has observed as follows :
“I am of the view that the said provision may not apply
to the provisions of Negotiable Instruments Act and
merely because the accused reside outside the
jurisdiction of the court, in each and every case it is not
necessary for the Magistrate topostpone the issuance of
process. The Magistrate, in my view, can exercise his
discretion and decide whether to issue process, dismiss
the complaint after recording the verification of the
complainant and his witnesses, if any, or postpone the
issuance of process and in a given case hold a further
inquiry, depending on facts and circumstances of each
case and non-compliance of the said provision would
not vitiate the issuance of process if there is material to
indicate that there has been an application of mind
on the part of the Magistrate after going through the
verification and other material brought on record by the
complainant”.
Considering the pendency of large number of
applications under Section 482 of Cr.P.C. for quashing
the process for non compliance of provisions of Section
202 of Cr.P.C., and in order to avoid conflicting
judgments the learned Judge of this court held that this
important issue needs to be finally resolved by the
division bench or the larger bench of this court.
23. In the case of Vinod V. SBI Global Factors Ltd. [2011 (4) Mh.LJ
282], this Court has taken a similar view and concurred with the judgment
in the case of Bansilal S.Kabra (supra).
24. It is however to be noted that in Netcore Solutions Pvt. Ltd. vs.
Pinacle Teleservices Pvt. Ltd. [ Writ Petition No.138 of 2011] which was
also in respect of complaint under Section 138 of N.I.Act a coordinate
bench of this Court, relying upon the decision of the Apex Court in
K.T.Joseph vs. State of Kerala [(2009) 15 SCC 197], Nilu Chopra & Anr.
vs. Bharti [(2009) 10 SCC 184] and the judgment of this Court in
S.C.Mathur (Capt.) & Anr. vs. Elektronik Lab & Ors. [2010(8) LJ Soft
103] has held the enquiry under Section 202 is mandatory.
25. In Netcore Solutions Pvt.Ltd. vs. Pincale Teleservices Pvt. Ltd.
[2013 ALL MR (Cri.) 1377] the Magistrate had not held enquiry as
directed in Writ Petition No.138 of 2011. Hence, the order of issuance of
process under Section 138 of N.I.Act was set aside and the learned
Magistrate was directed to exercise discretion in accordance with the
mandate of the provisions of Section 202 of Cr.P.C.
26. In Vimal Powerloom vs. Ravi Agency & Anr. [2014 ALL MR (Cri)
1696], the Magistrate had not complied with the amended provision of
Section 202 of Cr.P.C in a complaint under Section 138 of the N.I.Act. The
co-ordinate bench of this Court has held as follows :
“ the various decisions rendered by this Court show that
this court has held that the provisions of Section 202 as
amended is mandatory in nature. Thus the courts are
following the amended provisions in the State. In the
case of Oman Bank cited supra, it is laid down that it is
mandatory provision and procedure needs to be followed
by JMFC. In view of this position of law, this court
holds that the order of issue process passed by the
JMFC, without following the aforesaid procedure cannot
sustain in law. The Magistrate needs to follow the
procedure with only object, to ascertain the truth in the
allegations made and only prima facie case is required
to be made out. The scope of the enquiry under Section
202 of Cr.P.C. is very limited. It is also required to keep
in mind the relevant provisions of N.I.Act like Section
118 and 139 raise some presumptions. The witnesses
like bank officers are not required to be examined to
prove bank documents. Similarly, in respect of other
evidence, the postal endorsement on the notice, there are
presumptions under Section 27 of General Clauses act
and those presumptions can be kept in mind by the
JMFC. Thus the scope of enquiry, which may be made
by the Magistrate is very limited. In such a case to send
the matter to police even for limited purpose of
investigation is not desirable.”
With these observations, the process was set aside and the matter was
remanded with directions to follow the procedure laid down by Section 202
of Cr.P.C.
27. It is pertinent to note that the decisions of the Apex Court in Vijay
Dhanuka vs. Najima Mamitaj, K.T.Joseph vs. State of Kerala, and Bank
of Oman vs. Bakara Abdul Aziz and the decision of this court in
Chandrakant Pawar vs. State of Maharashtra (Supra) relate to the
offences under IPC. In the instant cases the process is issued under section
138 N.I.Act and the principal question for consideration is whether it is
obligatory to the Magistrate to comply with the provisions of sub section
(1) of section 202 Cr.P.C. in the complaints under section 138 NI Act.
Apparently the coordinate benches of this court have rendered conflicting
views on the question. It is true that the reference is pending and
controversy will be finally resolved in the said reference, but until such
time it is apposite to follow the view which is in conformity with the
scheme of the Act.
28. It is therefore imperative to consider the scope and ambit of section
138 and other amended provisions of the Negotiable Act. It may be
mentioned that Chapter XVII - comprising of Section 138 to 142, was
inserted in the N.I.Act, with effect from 1-4-1989. The object of bringing
Sections 138 to 142 of N.I. Act on statute, as reiterated by the Apex Court
in Indian Bank Association v. Union of India [(2014) 5 SCC 590] was :
“ to inculcate faith in the efficacy of banking operations
and credibility in transacting business on negotiable
instruments. Despite civil remedy, Section 138 intended
to prevent dishonesty on the part of the drawer of
negotiable instrument to draw a cheque without
sufficient funds in his account maintained by him in a
book and induce the payee or holder in due course to act
upon it. Section 138 draws presumption that one
commits the offence if he issues the cheque dishonestly. It
is seen that once the cheque has been drawn and issued
to the payee and the payee has presented the cheque and
thereafter, if any instructions are issued to the bank for
non-payment and the cheque is returned to the payee
with such an endorsement, it amounts to dishonour of
cheque and it comes within the meaning of Section 138.”
29. These amended provisions could not achieve the desired result, which
necessitated the parliament to make changes in existing provisions and
further introduce Sections 143 to 147 by the Negotiable Instruments
(Amendment & Miscellaneous Provisions ) Act, 2002, which came into
force with effect from 6-2-2003. By this Act, Sections 138, 141, and 142
were amended and Section 143 to 147 were introduced with an aim to
ensure expeditious disposal of cases relating to dishonour of cheques,
which are found to have clogged the criminal justice system. Further to
address the difficulties faced by the payee or the lender of the money in
filing the case under Section 138 of the said Act, by the Negotiable
Instruments (Amendment) Act, 2015 Section 142 has been amended and
Section 142A has been inserted to define the territorial jurisdiction for
offence under Section 138 of the Act.
30. It is thus clear that the Act has been amended from time to time to
ensure smooth functioning of business transactions and to restore the
sanctity and credibility of issuance of cheques in commercial transaction by
speedy trial and expedient disposal of cases under Section 138 of the
N.I.Act. The object of the Act cannot be ignored while deciding whether
the rigors of the amended provisions of Section 202 Cr.P.C. are applicable
to the offence under Section 138 of the Negotiable Act, which reads as
under:
Section 138. Dishonour of cheque for insufficieny etc., o
fund in the account-. Where any cheque drawn by a person
on an account maintained by him with a banker for payment
of any amount of money to another person from out of that
account for the discharge, in whole or in part, of any debt or
other liability, is returned by the bank unpaid, either because
of the amount of money standing to the credit of that account
is insufficient to honour the cheque or that it exceeds
the amount arranged to be paid from that account by an
agreement made with that bank, such person shall be
deemed to have committed an offence and shall, without
prejudice to any other provisions of this Act, be punished
with imprisonment for [a term which may be extended to
two years], or with fine which may extend to twice the
amount of the cheque, or with both: Provided that nothing
contained in this section shall apply unless—
(a) the cheque has been presented to the bank within a period
of six months from the date on which it is drawn or within
the period of its validity, whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the
case may be, makes a demand for the payment of the said
amount of money by giving a notice in writing, to the drawer
of the cheque, [within thirty days] of the receipt of
information by him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of
the said amount of money to the payee or, as the case may
be, to the holder in due course of the cheque, within fifteen
days of the receipt of the said notice.
31. This Section spells out the ingredients of the offence and provides the
penalty for such offence on fulfillment of the conditions stipulated in the
proviso. The Apex Court in Kusum Ingots & Alloyts v. Pennar Peterson
Securities Ltd. & Ar. [(2000) 2 SCC 745] has summed up the essential
ingredients of the offence under Section 138 of the N.I.Act as under :
(i) a person must have drawn a cheque on an account
maintained by him in a bank for payment of a certain
amount of money to another person from out of that account
for the discharge of any debt or other liability;
(ii) that cheque has been presented to the bank within a period
of six months from the date on which it is drawn or
within the period of its validity whichever is earlier;
(iii) that cheque is returned by the bank unpaid. either because
of the amount of money standing to the credit of the
account is insufficient to honour the cheque or that it exceeds
the amount arranged to be paid from that account by
an agreement made with the bank;
(iv) the payee or the holder in due course of the cheque
makes a demand for the payment of the said amount of
money by giving a notice in writing, to the drawer of the
cheque, within 15 days of the receipt of information by him
from the bank regarding the return of the cheque as unpaid;
(v) the drawer of such cheque fails to make payment of
the said amount of money to the payee or the holder in due
course of the cheque within 15 days of the receipt of the
said notice;
32. Section 142 deals with cognizance of offences. The said provision
reads as under:
Section 142.- Cognizance of offences-
(1) 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 the 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.
"(2) The offence under section 138 shall be inquired into
and tried only by a court within whose local jurisdictiona.
If the cheque is delivered for collection through an
account, the branch of the bank where the payee or holder
in due course, as the case may be, maintains the account, is
situated; or
b. If the cheque is presented for payment by the payee
or holder in due course otherwise through an account, the
branch of the drawee bank where the drawer maintains the
account, situated.
Explanation: For the purposes of clause (a), where a
cheque is delivered for collection at any branch of the bank
of the payee or holder in due course, then, the cheque shall
be deemed to have been delivered to the branch of the
bank in which the payee or holder in due course, as the
case may be, maintains the account".
Section 143.-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
provision of Section 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 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, 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 interest of justice, be
continued from day to day until the 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.
Section 145.-Evidence on Affidavit:-
(1) Not withstanding 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 proceedings 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.
Section 146. Bank’s slip prima facie evidence of
certain facts:-
The Court shall, in respect of every proceedings under
this Chapter, on production of bank’s slip or memo having
thereon the official mark denoting that the cheque has been
dishonoured, presume the fact of dishonour of such
cheque, unless and until such fact is disproved.
33. Upon analyzing the relevant provisions of the Act it is clear that
Section 138 of the Act spells out the ingredients of the offence as well as
the conditions required to be fulfilled before initiating the prosecution.
These ingredients and conditions are to be satisfied mainly on the
documentary evidence keeping in mind the presumptions under section 118
and 139 of NI Act and section 27 of General Clauses Act as well as the
provisions of section 146 of the Act.
34. The provisions of Section 142 to 147 lay down a Special Code for
the trial of offences under the Chapter XVII of the N.I. Act. While
considering the scope and ambit of the amended provisions of the Act the
Apex Court in Mandvi Co. Op. Bank Ltd. v. Nimesh B. Thakore [(2010) 2
SCC (Cri.) 1] has held that the provisions of Section 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 Apex
Court has held that :-
“It is not difficult to see that sections 142 to 147 lay down
a kind of a special code for the trial of offences under
Chapter XVII of the Negotiable Instruments Act and
sections 143 to 147 were inserted in the Act by the
Negotiable Instruments (Amendment and Miscellaneous
Provisions Act, 2002 to do away with all the stages and
processes in a regular criminal trial that normally cause
inordinate delay in its conclusion and to make the trial
procedure as expeditious as possible without in any way
compromising on the right of the accused for a fair trial.”
35. A plain reading of the above provisions clearly indicate that section
142 of the Negotiable Instrument underlines the procedure for taking
cognizance of offences under the Act. Departing from the general rule that
the criminal law can be set in motion by any person either by written
complaint or oral information, the provision of section 142 of the Act
mandates that the complaint under section 138 N.I.Act should be in writing
and should be filed and signed by the payee or the holder in due course, as
the case may be, before the concerned court. There is thus no scope to refer
the case for police investigation or enquiry. The exception engrafted in
section 142 serves as a safeguard against false and frivolous complaints and
thus eliminates the need to hold a preliminary enquiry contemplated by
section 202 Cr.P.C.
36. It is also pertinent to note that as a general rule Section 200
mandates examination on oath of the complainant and the witnesses
present, if any, and section 202 mandates an enquiry or investigation by the
police or by any other person. However, Section 145 with its non-obstante
clause dispenses the need for examination of the complainant and the
witnesses on oath and enables the magistrate to issue process on the basis of
the affidavit filed in support of the complaint under section 138 N.I.Act,.
Section 145 of the Act therefore is an exception to the general rule as
envisaged in Section 200 202 of the Code.
37. In Indian Bank Association and Ors. Vs. Union of India & Ors.
[(2014) 5 SCC 590], the Apex Court inter alia held that that under Section
145 of the Act, the complainant can give his evidence by way of affidavit
and such affidavit shall be read in evidence in an enquiry, trial or other
proceedings in the court, which makes it clear that the complainant is not
required to examine himself onwards i.e. once after filing the complaint and
once after summoning of the accused. The affidavit and 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 post-summoning stage. The Apex Court has held
that Amendment Act, 2002, is to be given effect to in its letter and spirit and
has issued several directions. The relevant direction which deals with the
issue is set out as under:
“The Metropolitan Magistrate/Judicial Magistrate
(MM/JM) on the date 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. ...”
38. In the case of Rajesh Chalke v. State of Maharashtra [2011(1)
Mh.L.J. 244], the issue before the full bench of this Court was whether in
view of the provisions of Section 145 of N.I.Act, the Metropolitan
Magistrate or Judicial Magistrate, First Class, taking up a complaint under
Section 138 of the N. I. Act, along with documents in support thereof and
the verifications made in the affidavit in support of the complaint, is still
obliged to examine on oath the complainant and his witnesses before
issuing process on the complainant. The full bench of this Court after
considering the object of Section 138 of N.I.Act vis-a-vis the provisions of
Section 145 of N. I. Act and 200 of Cr. P. C. has held that :
“35. After addition of Section 145 NI Act in the statute
book, it is open to the Magistrate to issue process on the
basis of the contents of the complaint, the documents in
support thereof and the affidavit submitted by the complainant
in support of the complaint. Once the complainant
files an affidavit in support of the complaint before
issuance of the process under Section 200 Cr.P.C, it
is thereafter open to the Magistrate, if he thinks it fit, to
call upon the complainant to remain present and to examine
him as to the facts contained in the affidavit submitted
by the complainant in support of his complaint.
But then it is a matter of discretion and the Magistrate is
not bound to call upon the complainant to remain
present before the Court and to examine him upon oath
for taking decision whether or not to issue process on the
complaint under Section 138 of NI Act.”
39. The dictum laid down by the Apex Court in Indian Bank Association
(supra) and the Full Bench of this court in Rajesh Chalke (supra) makes it
clear that in the complaints under section 138 NI Act, the Magistrate is not
obliged to examine the complainant under section 200 Cr.PC and can rely
on affidavit filed along with the complaint. The Magistrate can take
cognizance and issue summons if upon scrutinizing the complaint, the
affidavit and the documents he is satisfied that prima facie offence has been
made out against the accused.
40. It is also pertinent to note that the Negotiable Instruments
(Amendment) Act, 2015 defines and restricts the territorial jurisdiction to a
court specified in Section 142 (2) (a) and (b) of the Act. The said issue of
territorial jurisdiction which has to be decided on the basis of the
documents, eliminates the need for further inquiry on jurisdictional issue.
It therefore follows that the Magistrate can arrive at the requisite
satisfaction about the essential ingredients of the offence including the
issue of territorial jurisdiction at the end of the enquiry under Section 200
Cr.P.C itself and this obviates the need of holding further enquiry under
Section 202 Cr.P.C. This being the position further enquiry under sub
section (1) of Section 202 of the Code, if held to be mandatory in
complaints filed under Section 138 N.I.Act, will be nothing but ritualistic,
idle and an empty formality.
41. It may be mentioned that the decision of the full bench of this court in
Rajesh Chalke (supra_ was not brought to the notice of the learned Single
Judge in Netcore (Cri. Writ Petition No. 138 of 2011). Similarly, the
decision of the Apex Court in M/s. Indian Bank Associates (supra) as well
as the decision of the full bench of this court in Rajesh Chalke were not
brought to the notice of the learned single judge in Vimal Powerloom
(supra). Consequently, the learned Single Judges of this Court had no
occasion to consider the principles laid down by the Apex Court as well as
the full bench of this Court in the aforesaid decisions. These two decisions
therefore cannot be considered as binding precedents. In any case, upon
consideration of the decision in Indian Banks Association (supra) and
Rajesh Chalke (supra) it would be appropriate to follow the decision in
Bansilal Kabra (supra), and Vinod vs. SBI Global (supra).
42. It is also pertinent to note that Section 143 of the Act empowers the
Court to try cases under the Act summarily and thus, reinforces that every
trial shall be conducted as expeditiously as possible. Sub-section (3) of
Section 143 mandates that the trial would proceed, as far as practicable, on
a day-to-day basis and sub-section (4) of the section requires the Magistrate
to make the endeavour to conclude the trial within six months from the date
of filing of the complaint. Section 144 makes the process of service of
summons simpler and cuts down the long time ordinarily consumed in
service of summons. whereas Section Section 146 contemplates that bank
slip or memo having official mark denoting that the cheque has been
dishonoured, shall constitute prima-facie evidence of dishonour of the
cheque, unless and until, such fact is disapproved. The legislature has
inserted these provisions and has provided a special procedure with an
object of expeditious disposal of the cases under section 138 of the Act.
The very object of the Act will stand defeated if the enquiry under
subsection (1) of section 202(1) of Cr,P.C. is held to be mandatory in
complaints under section 138 of N.I.Act.
43. The decisions in case of Bansilal (supra) and Vinod (supra) holding
that compliance with the provision of Section 138 of N.I. Act is only
directory and not mandatory is in accord with the scheme of the N.I. Act
and the legislative intent that such complaints are disposed of in
expeditious manner. It may be mentioned that the Apex court in the case of
National Insurance Co. Ltd. vs, Saju P. Paul & Anr. [(2013) 2 SCC 41]
has held that the pendency of the reference before a larger bench is no bar
to follow the judgment under the reference. Therefore, following the view
in the said case, the impugned order cannot be interfered with for the noncompliance
of the provisions of Section 202 of Cr.P.C.
44. Under the circumstances and in view of discussion supra, the
applications have no merit and are accordingly dismissed. Rule is
discharged.
(ANUJA PRABHUDESSAI, J.)
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