Wednesday 20 May 2015

Whether criminal complaint for dishonour of cheque is substantive evidence?

Though complaint filed for offence under Section 138 of N.I. Act is akin to first information covered by Section 154 of Cr.P.C. unlike FIR, which is not substantive piece of evidence, complaint is a substantive piece of evidence which can be used for corroborating or contradicting the complaint, whether it is marked as exhibit or not. This is because, complaint presented under Section 200 of Cr.P.C. is akin to plaint or pleadings in civil proceedings since proceedings under N.I. Act are practically admixture of civil and criminal in nature. As submitted by learned Amicus Curiae placing reliance on the decisions of the Supreme Court in the case of BISHWANATH PRASAD AND ORS. v. DWARAKANATH PRASAD AND ORS. and TIRU JOHN v. THE RETURNING OFFICER AND ORS. , any admission made in the complaint is substantive evidence proprio vigore and an admission, if clearly and unequivocally made, is the best evidence against the party making it though not conclusive and for this purpose, the opposite party need not invite the attention of the complainant, who made admission in the complaint.

Karnataka High Court

V. Satyanarayana vs Sandeep Enterprises on 16 September, 2004
Equivalent citations: 2005 CriLJ 12, ILR 2004 KAR 4505, 2004 (7) KarLJ 541

Bench: S Bannurmath, S Majage

1. This revision Petition is referred under Section 9 of the Karnataka High Court Act by a learned Single Judge (MSRJ) seeking clarification as to the judgment rendered in the case of G. PREMDAS v. VENKATARAM 2001(1) KCCR 437 incidentally rendered by one of us (SRBMJ) and the following question is framed to answer the reference:
"Whether the complaint filed under Section 138 of the Negotiable Instruments Act forms part of the record? Or, Whether the same has to be marked as an exhibit as held in the said judgment and whether mere non-marking of the complaint is fatal?"
2. The facts and reason for reference are that:
The respondent - complainant filed a complaint against the petitioner/accused before the Court on XII Additional C.M.M. at Bangalore City for the offence punishable under Section 138 of the N.I. Act alleging that in connection with loan of Rs. 1, 95, 000/- availed by him on 14.1.1997, the petitioner/accused had issued 13 cheques, each for a sum of Rs. 15, 000/- besides executing pronote dated 21.1.1997. When five cheques at Exs.P4 to 8 were presented for encashment, they were dishonoured as per the bank memos at Exs. P.9 and 10 as funds not arranged and hence the respondent/ complainant got issued legal notice dated 25.8.1997 as per Ex.P.ll, which was served on the petitioner/accused. But, inspite of that, he did not pay the amount due under the said cheques. Consequently, the respondent/complainant filed complaint before the learned Magistrate for the offence punishable under Section 138 of the N.I. Act, which was registered as C.C.No. 357/1998 and ultimately ended in the conviction of the petitioner/accused under Section 255(2) of Cr.P.C, by which he had been sentenced to pay fine of Rs. 5, 000/- and in default to undergo S.I. for six months, besides to pay compensation of Rs. 75, 000/- to the respondent/complainant.
That matter was unsuccessfully taken up before the Sessions Court in Crl.A.No. 503/2000 by the petitioner/accused and that appeal came to be dismissed on 24.12.2001. Hence, he approached this Court in the present revision Petition under Section 401 r/w 397 of Cr.P.C, challenging the order passed by the learned Magistrate and also the order passed by the Sessions Court.
When the revision petition was taken up for consideration, the learned Counsel for the petitioner relying upon the decision in the case of G. PREMDAS (supra) contended that as even in this case, the complaint is not marked by the complainant and as such non marking of the complaint as exhibit is fatal to the complainant's case as such he is entitled for acquittal.
The learned Singe Judge (MSRJ) was not inclined to subscribe to the view expressed and law declared in G. PREMDAS's case and as such the present reference.
3. As the question raised is of general importance, we had requested Sri S.G. Bhagavan, learned Advocate to assist the Court as Amicus Curiae.
4. We have also heard the learned Counsel appearing for the petitioner/accused and also the learned Counsel for the respondent/ complainant.
5. It was submitted by Sri S.G Bhagavan, Advocate - learned Amicus Curiae that the complaint presented before Court under Section 200 of Cr.P.C, is a part of Court record, which could be looked into and considered even without being marked as exhibit since it is not a document to say that it could not be looked into or considered without being marked as exhibit. According to him, only a document, relied on by a party, cannot be considered or looked into unless it is marked as exhibit, but the same cannot be said with regard to complaint filed in the Court. This is because, according to him, the complaint will be presented by the complainant in person in the Court before the learned Magistrate under his signature and as such, it is a part of the Court record though, of course, on the basis of such complaint, criminal law will be set into motion. In this connection, he invited our attention to the definition of the word "complaint" given in Section 2(d) of Cr.P.C, besides Section 200 of Cr.P.C., which deals with complaint filed at first instance before the Court. Other learned Counsel appearing for the parties also submitted the same.
6. Perused the records.
7. In the case of G. PREMDAS (supra), it was observed that the complainant is required to get the complaint marked as exhibit and, if it is not marked as exhibit, the accused may lose a chance to confront the complainant with contents thereof and as such, in cases like the present one (arising out of Section 138 of N.I. Act), it is essential that the complaint should be not only got marked (under the Evidence Act), but its contents to be spoken by its author complainant, which will give an opportunity to him of corroboration and, at the same time, opportunity to the accused to elicit contradictions, and this is possible only when such complaint is produced and got marked in the evidence of the complaint. It was also observed that the complaint is not a substantive piece of evidence but can be used for corroborating or contradicting the complaint, though the proceedings under the N.I. Act are practically admixture of civil and criminal nature and the complaint forms the basis for the Court to take action and sets the criminal law into motion and is an important document like first information under Section 154 of Cr.P.C. These observations made in G. PREMDAS case are before us for consideration and clarification.
8. As rightly submitted by the Amicus Curiae, a complaint for offence under Section 138 of N.I. Act is always presented in the Court before learned Magistrates, unlike first information lodged/ covered by Section 154 of Cr.P.C, which is normally lodged before police. Of course, it is true, as observed in the case of G. PREMDAS (supra), that complaint is the basic document, which sets the criminal law into motion and it is also an important document like first information under Section 154 of Cr.P.C. and proceedings under the N.I. Act are practically admixture of civil and criminal in nature.
9. Though complaint filed for offence under Section 138 of N.I. Act is akin to first information covered by Section 154 of Cr.P.C. unlike FIR, which is not substantive piece of evidence, complaint is a substantive piece of evidence which can be used for corroborating or contradicting the complaint, whether it is marked as exhibit or not. This is because, complaint presented under Section 200 of Cr.P.C. is akin to plaint or pleadings in civil proceedings since proceedings under N.I. Act are practically admixture of civil and criminal in nature. As submitted by learned Amicus Curiae placing reliance on the decisions of the Supreme Court in the case of BISHWANATH PRASAD AND ORS. v. DWARAKANATH PRASAD AND ORS. and TIRU JOHN v. THE RETURNING OFFICER AND ORS. , any admission made in the complaint is substantive evidence proprio vigore and an admission, if clearly and unequivocally made, is the best evidence against the party making it though not conclusive and for this purpose, the opposite party need not invite the attention of the complainant, who made admission in the complaint.
10. Strictly speaking the complaint is not a document relied on by complainant in support of his case and as such, to rely on or use it, it need not be marked as exhibit since, being part of the record, it could 'be looked into and considered by the Court even though not marked as exhibit.
11. In the above view, simply because complaint is not marked as exhibit, the accused will not loose a chance to confront the complaint with its contents. So also, it cannot be said that like FIR, it is not a substantive piece of evidence. This is because, complainant can rely on the averments in the complaint without getting it marked as exhibit since it is a substantive piece of evidence.
12. Hence, in our view, if the complainant does not get the complaint marked as exhibit, there .is no infirmity or any technical error committed, because the complaint which is presented to the Court itself, it can be looked into and considered without being marked as exhibit and also could be used for corroborating the case of the complainant or contradicting the complainant, if the accused intends to do so. As such the view expressed in G. PREMDAS's case that complainant is required to get the complaint marked as exhibit and if it is not marked as exhibit, is fatal to the complainant's case is not a correct view.
13. In view of the above, we answer the question as follows:
"The complaint filed under Section 138 of the N.I. Act forms part of the record and hence, the same is not required to be marked as exhibit and further mere not marking of the complaint would not be fatal to the complainant's case."
14. As such, in our view, the judgment in the case of G. PREMDAS v. VENKATARAM (supra) is no more good law.
15. This takes us to the merits of the case.
It was vehemently argued for the petitioner/accused that since it is admitted by the respondent/complainant in his evidence that he is a money lender and not having any licence to do money lending business, debt or liability itself was not enforceable under law and as such, the trial Court as well as the Sessions Court committed an error in ignoring said material. In this connection, he referred and relied on Section 11 of the Karnataka Money Lenders Act, according to which, suit filed by a money lender, who has no valid licence in money lending, would not be decreed by a Civil Court.
16. It is true that the complainant - P.W. 1 has made the above admission, but there is nothing in his evidence to show that in the course of his business as a money lender, he has lent/advanced the amount to the petitioner/accused. That apart, though examined himself as D.W.I petitioner/accused has not stated that the cheques in question were in relation to any money lending business i.e., the cheque issued was in the course of money lending business of the respondent/accused. Suggestion made to the complainant - P.W.I, that the transaction was in the course of money lending business, was denied. So, on denied suggestion, it cannot be held that the transaction in question was in the course of money lending business. Hence, Section 11 of the said Act does not come into picture in the present case.
17. Even otherwise, if assumed that the cheques were issued by the petitioner/accused in the course of money lending - business, that itself does not attract the provisions contained in Karnataka Money Lenders Act. This is because, under said Act, money lender means "a person, who carried on the business of money lending" and to say that one is a money lender, he or she must carry on business in money lending in the State and, to record an activity as business, there must be a course of dealings carried with a profit motive. In other words, money lending must be carried on as profession. If the money lending was not with profit motive or, not carried on as a profession, he or she does not become a money lender under the Karnataka Money Lenders Act, as held by this Court in the case of M.N. RADHAMMA v. M.N. VENKATANARAYANAPPA ILR 1979(2) KAR 2138. So, a stray instance of lending money does not show carrying on the business of money lending as profession or with profit motive.
18. In the present case, there is no evidence or material on record to say that the respondent/complainant carried/carry on money lending business and consequently he comes within the meaning of the word "money lender" as defined under the Karnataka Money Lenders Act. So, admission or statement of respondent - PW.l that he does not possess money lending licence does not come to the aid of the petitioner/accused.
19. Of course, it was vehemently argued for the petitioner/ accused that the transaction in question could be said to be with profit motive since interest was agreed in the transaction, as can be said from promote at Ex.P.2. For this firstly, it may be noted that the complaint was not based on the pronote. Secondly, execution of pronote was subsequent to issuing cheques and it was not on the date of cheques. Thirdly, pronote was executed as security in the transaction of loan in which cheques were issued. Lastly, even if assumed that the transaction was with profit motive, it was a stray transaction as not shown that the respondent/ complainant was carrying on such transactions as profession to term him as "money lender" attracting Money Lenders Act. So, said pronote and argument in that regard do not help the accused much to hold the complainant as 'money lender' under Karnataka Money Lenders Act. Consequently, none of the grounds urged for the petitioner/accused helps him in any way. No other point has been raised or argued.
In the result, the revision petition is rejected.
S.R.B.M and S.B.M, JJ.
16.9.2004 After pronouncement, it is submitted that the subordinate Courts are following in judgment in G. PREMDAS's case supra, which is held by this Court now as no more good law. Hence, office is directed to send the copies of this judgment to all the Courts concerned dealing with Section 138 of the Negotiable Instruments Act.
After pronouncement of the judgment, the learned Counsel for the petitioner has filed application under Section 389 of Cr.P.C. to suspend the sentence as the petitioner intends to challenge the pronouncement and on merits. Since no substantial question of law arises for consideration, the prayer for suspension of sentence is rejected.
Print Page

No comments:

Post a Comment