Application u/s. 482 No.20386 of 2008

7th August, 2013

Petitioner Counsel: ARVIND AGRAWAL
Respondent Counsel: K.K. DWIVEDI, PULAK GANGULY, S.K. SHUKLA

JUDGMENT

JUDGMENT :- The applicant has preferred this application invoking inherent jurisdiction of this Court under Section 482 Criminal Procedure Code (in short the Code) with a prayer to quash the Complaint Case No. 1008 of 2008 (Sant Kumar Mittal Vs. Ajay Tau) under Section 420 I.P.C. pending in the court of Judicial Magistrate-I, Agra and also summoning order dated 23.6.2008 passed by Judicial Magistrate-I, Agra against the applicant.

2. To appreciate the controversy involved in this case the facts in brief are that the Opposite Party No. 2 filed complaint against the applicant alleging therein that the applicant drew a cheque of Rs. 25 lacs on his account maintained by him with Canara Bank for payment of the amount being part of the sale consideration relating to sale-deed executed by the O.P. No. 2 in favour of the applicant and two other persons. The O.P. No. 2 presented the cheque to the bank of the applicant through his bank within a period of its validity. However, it was returned unpaid by the bank of the applicant for the reason 'drawer's signatures differs from specimen given'. The O.P. No. 2 served notice upon the applicant as per provisions of Section 138 Negotiable Instrument Act (in short N.I. Act) of which the applicant gave incorrect reply and further failed to make the payment of the amount of the dis-honoured cheque to the O.P. No. 2. The learned Magistrate permitted the O.P. No. 2 to file his affidavit instead of recording his statement under Section 200 of the Code and after having considered the affidavit of the O.P. No. 2 and the other material and documents produced by him under Section 202 of the Code, has taken cognizance under Section 420 I.P.C. against the applicant and issued process under Section 204 of the Code. The applicant has prayed to quash the said order of issuing process against him by the court below by moving this application under Section 482 of the Code.

3. Heard learned counsel for the parties and perused the record.

4. It is contended by the learned counsel for the applicant that the Opposite Party No. 2 transferred and conveyed his landed property in favour of applicant, Lalit Raparia and Mahesh Chandra for a valuable consideration of Rs. 10 lacs vide registered sale deed 17.8.2007. The O.P. No. 2 executed the sale deed after having received the entire sale consideration as obvious from the perusal of the sale deed itself. Thus, there was no occasion to issue the cheque in question on 17.11.2007 after three months of the execution of the sale deed in favour of O.P. No. 2 towards the part payment of sale consideration. The applicant in his reply to the notice issued by the O.P. No. 2 has clearly stated that he never issued the cheque in question in his favour as a part payment of the sale consideration and further it is also clearly disclosed that the entire sale consideration was paid at the time of execution and registration of the sale deed.

5. The next limb of the arguments of the learned counsel for the applicant is that to constitute an offence under Section 138 N.I. Act following conditions are required to be fulfilled.

(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;

(ii) The cheque should have been issued for the discharge, in whole or in part, of any debt or other liability;

(iii) 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,

(iv) 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;

(v) 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 30 days of the receipt of information by him from the bank regarding the return of the cheque as unpaid;

(vi) 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;

6. Being cumulative, it is only when all the aforementioned ingredients are satisfied that the person who had drawn the cheque, can be deemed to have committed an offence under Section 138 of the N.I.Act.

7. In this case, the cheque in question was returned unpaid by the bank with an endorsement that drawer's signature differs specimen given and therefore, the dishonour of the cheque is not within the purview of Section 138 N.I. Act. Learned counsel stressed much that there is even not a whisper in the complaint that the applicant had fraudulent or dishonest intention at the time of making promise to assure the O.P. No. 2 that whenever the cheque in question be presented will be honoured by his bank. Therefore, the ingredients of cheating are also lacking. The learned Magistrate though had not taken cognizance under Section 138 N. I. Act but has taken cognizance under Section 420 I.P.C. observing that it appears that the applicant had fraudulent and dishonest intention at the time of issuing the cheque in question in favour of the O.P. No. 2 and with intention to deceive the O.P. No. 2 had deliberately endorsed his signatures on the cheque in the different mode to his specimen with the bank. The learned Magistrate had made the observation without any prima facie evidence on record. In fact there was no sufficient ground for proceeding against the applicant under Section 420 I.P.C.also

8. The main brunt of the arguments of the learned counsel for the applicant is that it appears that the learned Magistrate has adopted the procedure of criminal complaint applicable to Section 138 N. I. Act and while taking cognizance on the complaint instead of examining upon oath the complainant and witnesses under Section 200 of the Code permitted the complainant to file his affidavit. From perusal of the scheme laid down in Chapter XV of the Code it leaves no manner of doubts that in case, a complaint is made before the Magistrate under this Chapter the complainant and his witnesses shall be examined upon oath and the substance of such examination shall be reduced to writing and further shall be signed by the complainant and witnesses and also by the Magistrate. The provision of Section 200 of the Code is, therefore, mandatory in nature. Thus, taking cognizance for the offence under Section 420 I.P.C. by the learned Magistrate without following the procedure under Section 200 of the Code is absolutely illegal. Therefore, no offence punishable under Indian Penal Code is made out. The procedure adopted by the learned Magistrate for taking cognizance under Section 420 is dihorse to the scheme laid down in the Chapter XV of the Code. Thus, criminal prosecution of the applicant under Section 420 I.P.C. is an abuse of the process of the law, therefore, proceedings pending in the court below are liable to be quashed.

9. Learned counsel for the O.P. No 2, however, fairly conceded the fact that while taking cognizance under Section 420 I.P.C. and before satisfying that there is a sufficient ground for proceeding agasint the person who alleged to have committed offence has to follow the procedure under Section 200 and 202 of the Code and only then he can issue process under Section 204 of the Code. It is further contended by the learned counsel for the O.P. No. 2 that initially the case was filed as a complaint case under Section 138 N. I. Act. The learned Magistrate, accordingly, followed the procedure as prescribed in Section 145 N. I. Act. The O. P. No. 2 was, accordingly, permitted to file his affidavit instead of examining him under Section 200 of the Code. Learned Magistrate, however, after considering the affidavit and examining the documents produced by the complainant under Section 202 of the Code was of the opinion that an offence under Section 420 I.P.C. appears to have been committed and there is sufficient ground for proceeding under Section 204 of the Code accordingly, he summoned the applicant. Thus, hardly, it is a case of procedural irregularity committed by the court below. In such a circumstances impugned order passed by the learned Magistrate may be set aside and the case may be remanded back to be proceeded with in accordance with the provisions of Chapter XV of the Code. The applicant has taken contradictory stand in his reply to the notice issued by the O.P. No. 2 and in this petition. This indicates that the applicant issued the cheque in question in favour of the O.P. No. 2 against liability and made his different signatures on the cheque in question with fraudulent and dishonest intention making false promise that whenever it will be presented shall be honoured. Thus, certainly he has committed an offence of cheating punishable under Section 420 I.P.C. Therefore, the proceedings in a complaint case against the applicant pending in the court below are not liable to be quashed.

10. I have given my thoughtful consideration to the arguments of the learned counsel for both the sides. Undisputedly, the O.P. No. 2 moved the complaint before Magistrate on the allegations of dishonour of the cheque under Section 138 N. I. Act and Section 420 I.P.C. The Magistrate, therefore, adopted the procedure applicable to the complaint under the said Act. Section 145 of the Act indicates that the evidence of the complainant under the said Act may be given on affidavit and be read in evidence in any enquiry, trial or other proceedings under the Code. Section 145 of the N. I. Act reads thus:

145. 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 of the accused, summon and examine any person giving evidence on affidavit as to the fact contained therein.

11. The provision under the aforesaid Section, thus, clearly permits Magistrate to take evidence on affidavit. The provisions of this Section obviously has an over-ridding effect over the provisions of the Code. It is an enabling provision for the complainant as the word 'may' has been used for his evidence on affidavit. However, it does not mean that the complainant has to give his evidence on affidavit only. Thus, the procedure adopted by the learned Magistrate was in accordance with the provisions applicable to the complaint under the N.I. Act. However, I am fully convinced with the submissions made by the learned counsel for the applicant that in this case the dishonour of cheque does not come within the ambit of Section 138 N.I. Act, as the cheque was returned unpaid by the Bank of the applicant as the drawer's signatures differs specimen given. Obviously, the learned Magistrate has not taken cognizance under Section 138 N. I. Act but the main contention of the applicant is that the learned Magistrate has taken cognizance against him under Section 420 I.P.C. and had issued the process which he cannot do for the reason that while taking cognizance on the complaint the complainant and his witnesses shall be examined upon oath and the substance of such examination shall be reduced to writing and further shall be signed by the complainant and the witnesses and also by the Magistrate as is obvious from the plain reading of Section 200 of the Code.

12. On a plain reading of the complaint so lodged by the O.P. No. 2 before the learned Magistrate it appears that the complainant has made allegations of dishonour of cheque and also cheating against the applicant. The learned Magistrate after going through the affidavit filed by the O.P. No. 2 and also examining the documents produced before him under Section 202 of the Code was of the view that there is sufficient ground for proceedings against the applicant under Section 420 I.P.C. As discussed earlier provisions of Section 145 of the N. I. Act which is the enabling provisions for the complaint. The Section 145 (1) has given compete freedom to the complainant either to give evidence by way of affidavit or adopting procedure of Section 200 of the Code by examining upon oath himself and his witnesses.

13. Chapter XV of the Code relates to the complaint to the Magistrate. Section 200 of the Code indicates that a Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present. The substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses as the case may be and also by the Magistrate. The proviso to this Section provides that if the complaint is made by the public servant or a court has made the complainant, the Magistrate need not examined the complainant and the witnesses.

14. The special provision of filing evidence through affidavit as indicated under Section 145 N.I. Act is not applicable relating to the offences punishable under Indian Penal Code. Thus, the Magistrate while taking cognizance of an offence on the complaint under any offence other than N.I. Act is bound to follow the scheme of Chapter XV of the Code. Obviously, the Magistrate taking cognizance of an offence punishable under Section 420 I.P.C. cannot issue process under Section 204 of the Code without following the procedure as laid down under Section 200 of the Code.

15. In view of entire facts and circumstances of this Case particularly taking in view that initially the complaint was instituted under Section 138 N. I. Act, however, taking cognizance of offence under Section 420 I.P.C. by the learned Magistrate in this case on the basis of affidavit filed by the applicant appears to be procedural irregularity which can be cured, as the case is at its initial stage. The learned Magistrate while taking cognizance of the case under Section 420 I.P.C. before issuing the process against the applicant was bound to follow the procedure of Chapter XV of the Code.

16. Accordingly, the impugned order dated 23.6.2008 is set aside. The learned Magistrate concerned is directed to follow the procedure applicable to the complaint cases under Chapter XV of the Code in accordance with the law and if in his opinion there is sufficient ground for proceeding he may take a fresh recourse as provided under Section 204 of the Code.

17. The application under Section 482 is disposed of finally with the above observations.

Ordered accordingly.