Dismissed

Sri Hanumanthaiah v. Sri T N Bheema Raju

Karnataka HC6 Jul 2022CRL.P/5006/2022

Case brief

AI extract

What is this about?

Single judge dismissed criminal petition under Section 482 Cr.P.C. seeking quashment of proceedings for cheque dishonour. Court distinguished coordinate bench judgments by relying on Division Bench ruling allowing affidavits instead of sworn statements under Section 200 Cr.P.C. for NI Act offences.

What did the court decide?

Petition for quashment of order taking cognizance and issuing process dismissed on ground that affidavit in lieu of sworn statement is permissible.

Sri Hanumanthaiah Vs Sri T N Bheema Raju — Cheque Dishonour | Karnataka HC (2022)

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CRL.P No. 5006 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 06TH DAY OF JULY, 2022

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA CRIMINAL PETITION NO. 5006 OF 2022

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BETWEEN:

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SRI HANUMANTHAIAH S/O RAMAIAH AGED ABOUT 58 YEARS, NO.88, MARUTHI NILAYA BEHIND GOVT HIGHER MIDDLE SCHOOL HIPPE ANJANEYA TEMPLE ROAD, NELAMANGALA TOWN, NELAMANGALA-562123

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…PETITIONER

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(BY SRI. K.N. NITISH, ADVOCATE)

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AND:

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Digitally signed by PADMAVATHI B K Location: HIGH COURT OF KARNATAKA

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SRI T N BHEEMA RAJU S/O LATE NARASAIAH AGED ABOUT 68 YEARS, R/AT NO.121, HIPPE ANJANEYASWAMY TEMPLE ROAD BANGALORE RURAL DIST NELAMANGALA-562123

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…RESPONDENT

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THIS CRL.P FILED U/S.482 CR.P.C BY THE ADVOCATE FOR THE PETITIONER PRAYING THAT THIS HONORABLE COURT MAY BE PLEASED TO ALLOW THIS PETITION AND SET ASIDE THE ORDER OF TAKING OF COGNIZANCE DATED 09.11.2015 AND ISSUE OF PROCESS DATED 16.02.2016 AT

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CRL.P No. 5006 of 2022

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ANNEXURE A IN PROCEEDINGS IN CC NO. 325/2016 (PCR 305/2015) ON THE FILE OF LEARNED II ADDL. CIVIL JUDGE AND JMFC, NELAMANGALA.

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THIS CRIMINAL PETITION COMING ON FOR ADMISSION, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question proceedings in C.C.No.325 of 2016 registered pursuant to an order taking cognizance on 9-11-2015.

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Heard Sri K.N.Nitish, learned counsel appearing for the petitioner.

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The petitioner and the respondent were into certain transactions and alleging offences punishable under Section 138 of the Negotiable Instruments Act, 1881 (‘the Act’ for short), the respondent registers a complaint against the petitioner/accused invoking Section 200 of the Cr.P.C. in which cognizance was taken by the learned Magistrate on 09.11.2015 and process was issued

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on 16.02.2016. After six years, the petitioner calls in question the order taking cognizance in the subject

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CRL.P No. 5006 of 2022

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petition. The solitary ground urged by the petitioner in the petition is that sworn statement is taken by way of an affidavit, which is impermissible in law. On this ground, the petitioner seeks quashment of entire proceedings registered against the petitioner for offences punishable under the Act.

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It is the submission of the learned counsel for the petitioner that two judgments rendered by Co-ordinate Benches of this Court in the case of B.R.PREMA KUMARI v. SUPRAJA CREDIT COOPERATIVE SOCIETY LIMITED¹ and in the case of Y.RADHAKRISHNA v. K.VASANTHA RAO² cover the issue at hand on all its fours and therefore, seeks quashment of entire proceedings. The submission of the learned counsel is unacceptable as judgments of Co-ordinate Benches were earlier to the one rendered by the Division Bench in

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1 2009 (6) KLJ 127

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2 2010 SCC OnLine Kar. 705

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CRL.P No. 5006 of 2022

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NOORUNNISA BEGUM v. GOPAL³ , wherein the Division

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Bench answering the very issue as to whether an affidavit of the complainant could be taken as a sworn statement

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has held that it is permissible. Issue that was placed before the Division Bench can be gathered from the first paragraph of the judgment which reads as follows:

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“The records are placed before this Bench to decide the following question:

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“Having regard to the amendment to the 1881 Act, brought about by the amending Act 55/2002, and the statement of objects and reasons thereto, with effect from 6.2.2003, whereby Sections 143 to 147 are inserted, whether the recording of a sworn statement by the Magistrate as required under Section 200 Cr.P.C. in proceedings instituted for an offence punishable under Section 138 of the 1881 Act, would be mandatory and whether the same could either be dispensed with or an affidavit be received in lieu of a sworn statement?

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3 ILR 2013 KAR. 3717

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CRL.P No. 5006 of 2022

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During the hearing of Criminal Revision Petition, it appears the Learned Advocate for the accused argued that due to non-recording of the sworn statement of the complainant under Section 200 of Code of Criminal Procedure (‘Cr.P.C.’ for short), entire criminal proceedings vitiate inasmuch as such infirmity goes to the root of the matter since it violates mandatory requirement in law. The Advocate seems to have also contended before the Learned Single Judge that notwithstanding such objection was not raised before the Courts below, the petitioner is not disentitled to raise the same as preliminary ground in Criminal Revision Petition. The sum and substance of the petitioner's case is that sworn statement of the accused to be recorded under Section 200 of Cr.P.C. cannot be dispensed with by receiving affidavit of the complainant. In the matter on hand, the Trial Court had received the affidavit of the complainant in lieu of recording of his sworn statement under Section 200 of Cr.P.C. and proceeded to issue Process against the accused and thereafter further proceedings have taken place as per law.

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Per contra, it seems the complainant's Advocate contended that the recording of sworn statement can be dispensed with by receiving the affidavit of the complainant. In that context, the Learned Single Judge having noticed conflicting

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CRL.P No. 5006 of 2022

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judgments on the subject has referred the matter to larger Bench and hence the papers are placed before us to decide the aforementioned question of law.”

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and the Division Bench answers the issue as follows:

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“28. There cannot be any dispute that the provisions of Sections 143 to 145 of the N.I. Act have got overriding effect. These Sections contain the non-obstante clause. Therefore the relevant provisions under Cr.P.C., are subject to the provisions of Sections 143 to 145 of the N.I. Act. Such provisions of Cr.P.C., thus, are not attracted. Moreover Section 4(2) Cr.P.C., further makes it amply clear that all offences under any other law including N.I. Act shall be investigated, inquired into, tried and otherwise dealt with according to same provisions but subject to the enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is further made clear in Section 5 of Cr.P.C. that nothing contained in the Cr.P.C. shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force. Since the special law

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CRL.P No. 5006 of 2022

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i.e., N.I. Act provides particular procedure for receiving the complaint and for filing the affidavit in lieu of the sworn statement, those provisions prevail over the procedure contemplated under Section 200 of Cr.P.C. The object of enquiry envisaged under Section 200 of Cr.P.C. is to verify the truth or falsehood of the averments made in the complaint and to find out whether there is primafacie material or evidence in support of the complainant to issue Process against an accused and nothing more than that. And that object is fulfilled by the documents filed with such complaints for offence under Section 138 of N.I. Act. So examination or non-examination of the complainant and his witnesses, if any, on oath has no such effect on the enquiry in respect of the complaints filed for offence under Section 138 of N.I. Act. The interest of the accused is well protected under Section 145(2) of the N.I. Act inasmuch as the accused can call for the complainant or any witnesses for being crossexamined. The procedure followed by the Court at the stage of Section 200 Cr.P.C. or prior to the stage of Section 203 or 204 Cr.P.C., would be nothing but ‘enquiry’. Thus what is recorded during the course of preliminary enquiry can be regarded as ‘preliminary evidence’. Section 145 of the N.I. Act is inserted with the avowed object of dispensing with the preliminary evidence of the complainant in

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CRL.P No. 5006 of 2022

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order to have speedy trial. In this view of the matter, we have no hesitation in our mind but to conclude that the affidavits of the complainant/his witnesses may be received under Section 200 of Cr.P.C. The affidavits so received may be termed as ‘pre-summoning evidence’. As post-summoning evidence can be received in the form of affidavit of the complainant or his witnesses under Section 145 of the N.I. Act, there is no reason to debar the filing of affidavits at the pre-summoning stage.

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29. In view of the above, we answer the referred question as under:

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“Having regard to the amendment to the Negotiable Instruments Act, 1881 Act, brought about by the amending Act 55/2002, and the statement of objects and reasons thereto, with effect from 6.2.2003, whereby Sections 143 to 147 are inserted, recording of a sworn statement by the Magistrate as required under Section 200 Cr.P.C. is not mandatory in respect of the proceedings instituted for an offence punishable under Section 138 of the Negotiable Instruments Act, 1881. The recording of the sworn statement may be dispensed with and the affidavit may be received in lieu of a sworn statement”.

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CRL.P No. 5006 of 2022

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Place the records before the Learned Single Judge to proceed further in Criminal Revision Petition No. 2604/2012 on merits.”

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In the light of the reference answered by the Division Bench considering the very issue, the judgments that the learned counsel seeks to place reliance upon will

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have to be placed in the oblivion as they would be rendered unacceptable. The learned counsel appears to be short informed with regard to the law laid down by the Division Bench of this Court. Therefore, the solitary submission made by the learned counsel deserves to be rejected and is accordingly rejected. Consequently, the petition deserves to be dismissed and is accordingly dismissed.

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I.A.No.1/2022 is dismissed, as a consequence.

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Sd/JUDGE

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SJK

Sri Hanumanthaiah v. Sri T N Bheema Raju

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Sri Hanumanthaiah v. Sri T N Bheema Raju

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