Karnataka HC: Presence of complainant is not necessary if he has filed affidavit along with complaint for dishonour of cheque

There is one more decision of the Apex Court on the issue of procedure to be followed during the trial of a complaint under NI Act. That is in the case of METERS & INSTRUMENTS PVT. LTD. vs. KANCHAN MEHTA MANU/SC/1256/2017 : (2018) 1 SCC 560 which deals with the issue of conducting entire proceedings of the complaint online. It holds that it is open for the High Courts to consider and lay down a category of cases, which can be conducted online by the designated Court or otherwise. This decision expects the High Courts to issue the directions dealing with the cases under Section 138 of NI Act. We will consider the question of issuing directions in terms of the said decision for online conduct of the proceedings of a complaint alleging offence under Section 138 of NI Act.

16. As far as the statement of the complainant under Section 200 of Cr.P.C. is concerned apart from the decision in the case of A.C. Narayanan, there is another decision of the Apex Court in the case of INDIAN BANK ASSOCIATION. vs. UNION OF INDIA MANU/SC/0387/2014 : (2014) 5 SCC 590 wherein, the Apex Court in the context of the complaint under Section 138 of NI Act held that the affidavit filed by the complainant along with the complaint for taking cognizance of the offences is good enough be read in evidence at both the

stages, that is, pre-summoning stage and post-summoning stage. In fact, in paragraph 23.1 of the said decision, the Apex Court has observed that the Metropolitan Magistrate/Judicial Magistrate on the day when the complaint under Section 138 of NI Act is presented, shall scrutinize the complaint and if the complaint is accompanied by an affidavit, and that the affidavit and the documents, if any, are found to be in order, may take cognizance and direct issuance of summons.

Therefore, to conclude, when a written complaint as contemplated by clause (a) of sub-section (1) of Section 190 of Cr.P.C. is filed and when the complainant is represented by an advocate, the Courts of Magistrate cannot insist upon personal presence of the complainant at the time of filing of the complaint. In case of a complaint alleging offence punishable under Section 138 of NI Act, it is not necessary for the Magistrates in every case to insist upon personal presence of the complainant for examining him upon oath as contemplated by Section 200 of Cr.P.C., if such a complaint is accompanied by an affidavit of the complainant or his authorized representative. After perusing the affidavit and documents, if any, if the Magistrate is satisfied, he can order issue of summons

IN THE HIGH COURT OF KARNATAKA

W.P. No. 7338/2020

Decided On: 03.06.2020

 High Court of Karnataka  Vs.  The State of Karnataka

Hon'ble Judges/Coram:

Abhay Shreeniwas Oka, C.J. and S. Vishwajith Shetty, J.

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Whether complainant's statement recorded U/S 200 of CRPC can be used to contradict or discredit him?

While taking cognizance of an offence, the Magistrate examines the complaint on oath and the witnesses present if any. Then, the Magistrate reduces to writing only "the substance of such examination". This substance aids the Magistrate to form a prima facie opinion about the case. In other words, it is to discover the truth or otherwise of the allegations made. It is for deciding the question purely from the complainant's viewpoint, with no reference to the possible defence. Thus, the procedure under Section 200 Cr.P.C. is non- adversarial And what is recorded is not the complainant's verbatim statement, only the substance or gist. Therefore, it is not a piece of substantial evidence to be used to contradict or discredit the complainant.

IN THE HIGH COURT OF BOMBAY

Criminal Appeal No. 657 of 2018

Decided On: 23.07.2019

Doshi Brothers Vs.  The State of Maharashtra 

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Guidelines of Supreme court for trial of dishonour of cheque cases

Many of the directions given by the various High Courts, in our view, are worthy of emulation by the Criminal Courts all over the country dealing with cases Under Section 138 of the Negotiable Instruments Act, for which the following directions are being given:

DIRECTIONS:

(1) Metropolitan Magistrate/Judicial Magistrate (MM/JM), on the day 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.

(2) MM/JM should adopt a pragmatic and realistic approach while issuing summons. Summons must be properly addressed and sent by post as well as by e-mail address got from the complainant. Court, in appropriate cases, may take the assistance of the police or the nearby Court to serve notice to the accused. For notice of appearance, a short date be fixed. If the summons is received back un-served, immediate follow up action be taken.

(3) Court may indicate in the summon that if the accused makes an application for compounding of offences at the first hearing of the case and, if such an application is made, Court may pass appropriate orders at the earliest.

(4) Court should direct the accused, when he appears to furnish a bail bond, to ensure his appearance during trial and ask him to take notice Under Section 251 Code of Criminal Procedure to enable him to enter his plea of defence and fix the case for defence evidence, unless an application is made by the accused Under Section 145(2) for re-calling a witness for cross-examination.

(5) The Court concerned must ensure that examination-in-chief, cross-examination and reexamination of the complainant must be conducted within three months of assigning the case. The Court has option of accepting affidavits of the witnesses, instead of examining them in Court. Witnesses to the complaint and accused must be available for cross-examination as and when there is direction to this effect by the Court.

22. We, therefore, direct all the Criminal Courts in the country dealing with Section 138 cases to follow the above-mentioned procedures for speedy and expeditious disposal of cases falling Under Section 138 of the Negotiable Instruments Act.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 18 of 2013

Decided On: 21.04.2014

Indian Bank Association Vs. Union of India (UOI) 

Hon'ble Judges/Coram:

K.S. Panicker Radhakrishnan and Vikramajit Sen, JJ.

Citation: 2014(5) SCC 590.

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Whether complainant can give evidence on affidavit in enquiry under S 200 of CRPC in case of dishonour of cheque?

 The non obstante Clause in Sub-section (1) of Section 145 is self-explanatory and over-rules the requirement of examination of the complainant on solemn affirmation Under Section 200 of the Code of Criminal Procedure. Now the complainant is entitled to give his evidence on affidavit and subject to all just exceptions, the same has to be read in evidence in any enquiry, trial or other proceeding under the Code of Criminal Procedure. This view is also supported by the judgment of this Court in the case ofMandavi Cooperative Bank Ltd. v. Nimesh B. Thakore MANU/SC/0016/2010 : (2010) 3 SCC 83. No doubt this judgment was in a different factual scenario but this Court went into details of the amendment of 2002 including Section 145 and in paragraph 18 it also noted the Statement of Objects and Reasons appended to the Amendment Bill. Inter alia, the objects included "to prescribe procedure for dispensing with preliminary evidence of the complainant".

5. In view of discussion made above, the plea based on Section 200 of the Code of Criminal Procedure is rejected as untenable.

Equivalent Citation: 2016(4)SCALE94,(2016) 11SCC 105

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 247 of 2016 

Decided On: 11.04.2016

 K.S. Joseph
Vs.
Philips Carbon Black Ltd. and Ors.

Coram:Dipak Misra and Shiva Kirti Singh, JJ.

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Whether complaint can be made against Judge without affidavit of complainant and substantial evidence?

AHMEDABAD: The judges of lower courts across the state have now got a sort of immunity from Gujarat high court. A circular issued by the HC says that no complaint against any judicial officer will be entertained unless it is accompanied by an affidavit (by the complainant) and substantial evidence. 

This means anonymous complaints received against judges of lower court will now be junked. High court registrar general B N Karia's circular says that acting Chief Justice V M Sahai has laid down certain guidelines to deal with complaints against members of lower judiciary. 

"The complainant making allegations against the members of the subordinate judiciary in the state should not be entertained and no action should be taken thereon, unless it is accompanied by a duly sworn affidavit and verifiable material to substantiate the allegations made therein," the circular reads. The HC has said that action will be taken only after ascertaining the authenticity of the complaint, and "if the requirements are not complied with, the complaint should be junked without taking any steps thereon". 

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