Dismissed

Ashok Makhija v. Rajendra Kumar Jain and Anr.

Chhattisgarh HC27 Nov 2013CRMP/560/2013

Case brief

AI extract

What is this about?

Single bench of the Chhattisgarh High Court held that under the Negotiable Instruments Act, 1881, evidence on affidavit under Section 145 is sufficient for issuing process and registering an FIR, overriding the general requirement under Section 200 of Cr.P.C.

What did the court decide?

The petition under Section 482 of Cr.P.C. was dismissed as the trial court was not guilty of illegality.

Ashok Makhija Vs Rajendra Kumar Jain and Anr. — Cheque Dishonour | Chhattisgarh HC (2013)

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wk-Makhija aged about 40 Years S/o

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Sevandas Makhija, R/o Near Mother

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Meny School, Stadium Road, Aaupam .C«JL>ft^^^Q-t^-^:^, Nag'af, Rajnandgaon (C.G.) A

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Rajendra Kumar Jain aged about. Years S/o Stoi .akilal Jain, R;'o Lakholi Ward No. 45 Rajnandgaon ;C.G.)

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Through - District Magistrate, Collec

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Distt.- Rajnandgaon (C.G

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HI6H COURT OF CHHAmsSARH.BILASPUR

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(Sinqle Bench: Hon'ble Mr. T.P. Sharma. J)

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Cr.M.P. No.560/2013

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Petitioner AshokMakhija

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Respondents

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Rajendra Kumar Jain

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Stcte of Chhattisgarh

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Present:-

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Mr. Rakesh Thakur, Advocate forthe petitioner.

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None for respondent No.l.

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Mr. Anand Verma, P.L for the respondentNo.2.

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ORbER

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i. By this petition under Section 482 of Cr.P.C. the petitioner has challenged the legality and validity bf the order dated 22.9.2012 passed by the Sessions Judge, Rajnandgaon in Criminal Revision No.49/12 affirming the order dated 29.6.2012 passed by the Judicial Magistrate 1 Class, Rajnandgaon in Complaint Case No.563/10 whereby preliminary objection of the petitioner has been dismissed.

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Heard learnedcounsel for the partiesand perused the ordersimpugned.

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Learned counsel for the petitioner submits that the trial Court has registered the criminal complaint for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short 'the Act') only on the basis of evidence of the complainant on oath under Section 145 of the Act instead of examining fhe complainant and his witnesses under Sections 200 & 202 of Cr.P.C. and thereby committed illegality. The tridl Court has further committed illegality by dismissing the preliminary objection relating to order taking cognizance of offence and the revisional Court has affirmed the aforesaid illegalorder. Reliance is ptaced in the matter of National Small Industries Corporation Limited v.State (NCT of Delhi) and others reported in (2009) 1 SCC 407 in which the Supreme Court has held that examination of the complainant is mandatory with a view to find out whether there are sufficient grounds for proceeding against the

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Cr.M.P. No.560/13

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accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused.

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Reliance is further placed in the matter of National Highways Authority of India and others v. Ramesh Kumar Suryavanshi & others reported in 2012 (II) MANISHA 114 (CG) in which coordinate Bench of this Court has held that the Magistrate, while entertaining complaint under Section 200 of the Cr.P.C., taking cognizance upon a complaint, is mandatorily required to examine on oath.

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The Act is a special Act and special procedure has been prescribed in the Ac-t. As per Section 145 of the Act, evidence of the complainant is permissible on oath in any enquiry, trial or other proceeding. Section 145 of the Act reads thus;-

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"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.

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lc.

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(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."

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In the present case, the Magistrate has not examined the complainant on oath, but the complainant has given his evidence on affidavit. While dealing with the question of requirement of examination of the complainant on oath, this Court in the matter of Amarjit Singh v. Jasjit Singh reported in 2011 Cr.L.R. (C.G.) 393 while considering 'various provisions of the specia! Act i.e. the Negotiable Instruments Act, 1881, has held that in accordance with Section 145 of the Act evidence of the complainant on affidavit is sufficient compliance of the requirement of Section 200 of the Cr.P.C. Same vieuv was reiterated by this Court in Cr.M.P.No.879/2011 (Rupesh Kumer Dhivar v. Nitin Shrivastava) videorder dated 15-3-2012. ?

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v%. '"'y ' '^'Liss'^.-

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Cr.M.P. No.560/13

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While dealing with the same question in Cr.M.P. Nos.215,216 <& 217 of 2012 relying the case of M/s Mandvi Co-op. Bank Ltd. v. Nimesh B. Thakore reported in AIR 2010 SC 1402 this Court has observedin Para21 as follows;-

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"Zl.Therefore, following points emerge from aforesaid discussion:-

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The Negotiable Instr'uments Act, 1881 is a special Act having overriding effect over the general Act i.e. the Code of Criminal Procedure, 1973.

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Examination of the complainant by producing evidence on affidavit under Section 145 of the Act is sufficient compliance of the provisions of Section 200 of the CrPC.

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The word "shall" occurring in Section 202 of the CrPC is discretionary in character.

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The Magistrate is competent to issue straightaway the process, but if he holds enquiry into the complaint and fails to comply with the mandatory provisions, then, even same would not vitiate the proceeding in case prejudice has not been shown to have caused to the accused by such non-compliance."

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In both the cases relied by the applicant the provisions of Section 145 of the Act have not been consklered.

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Thus, in the light of special provision in the special Act i.e. the Negotiable Instruments Act, 1881, for giving evidence on oath, the Court is not required to examine the complainant on oath under Section 200 of the Cr.P.C. and thereforeby taking cognizance and issuing process on the basis of evidance of the complainant on affidavit, the Court below has not committed illegality.

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Consequently, the petition is liable to be dismissed and is hereby

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dismissed.

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Sd/T.RSharma Judge

Ashok Makhija v. Rajendra Kumar Jain and Anr.

Case brief

What is this about?

What did the court decide?

Ashok Makhija v. Rajendra Kumar Jain and Anr.

Case brief

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What did the court decide?

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