Full Judgment Text
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.287 AND 288 OF 2009
M/s.Reliance Industries Ltd. }
A Company incorporated under the Companies Act, 1956 }
having its registered office at Maker ChambersIV, }
3
rd
floor, Nariman Point, Mumbai400 021. }
through its General Manager, Mr.Randhir Pachichigar } Appellant
Vs.
1. The State of Maharashtra }
2. M/s.Patodia Textiles Industries Ltd., a Company }
duly registered under the Companies Act, 1956, }
having its office at Solaris 1A, 6
th
Floor, }
SakiVihar Road, Andheri (W), Mumbai – 400 072. }
3. Indra Kumar Patodia }
4. Mahendra Kumar Patodia }
Nos.3 and 4 both of Mumbai, Indian Inhabitants, }
Directors of No.2 above named, having their }
office at Solaria 1A, 6
th
Floor, SakiVihar Road, }
Andheri (West), Mumbai400 072. } Respondents
.........
In both Appeals:
Mr.Amit Desai, Senior Advocate with Mr.Ganesh Bhujbal and Mr.Gopalkrishan
Shenoyinstructed by Mr.Prakash Naik for the appellants.
Smt.V.R.Bhosale, Addl. Public Prosecutor, for the Staterespondent No.1.
Mr.A.M.Saraogi with Mr.S.A.Jabhar, Smt.Leema Gupta and Mr.B.C.Gandhi,
instructed by Mr.K.C.Pandey, for respondent Nos.2 to 4.
.........
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CORAM : P.B.MAJMUDAR &
R.G.KETKAR, JJ.
th
AND 18
th
MARCH, 2010.
DATE : 17
ORAL JUDGMENT (Per R.G.Ketkar, J.)
The learned single Judge of this Court (A.R.Joshi,J.) by order dated July
9, 2009 has referred following two points for the determination by the Larger
Bench, and accordingly, this Court is required to consider the following two
points in these appeals for our decision:
Point (1): In the matter of complaint for the offence
punishable under Section 138 of the Negotiable Instruments
Act, whether the complaint without the signature of the
complainant, inspite of verification of complaint, is `non entia’
and whether no prosecution can lie on such complaint?
Point (2): If answer to point No.1 is negative then whether it
is a mere irregularity and it can be cured subsequently and
whether such subsequent amendment would relate back to
the date of filing of the complaint or whether it would hit by
the Law of Limitation.
2] On behalf of the appellants in both the appeals (hereinafter referred
to as “the complainants”), reliance was placed upon the judgment of the learned
single Judge (R.K.Batta, J.) in the case of Vijay s/o.Ganesh Gondhalekar and
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another Vs. Ramchandra s/o.Girdharilal Sarda and another, 2003(1)Mh.L.J.47.
On the other hand, on behalf of respondent nos.2 to 4 in both the appeals
(hereinafter referred to as “the accused”), reliance was placed upon the
judgment of the learned single Judge of this Court (V.R.Kingaonkar, J.) in the
case of Roy Joseph Vs. Sk.Tamisuddin, 2008(3)Mh.L.J.705 . The learned
Judge was of the opinion that the points in question are required to be decided
by the Larger Bench in view of the conflicting views expressed in two different
judgments by the two learned single Judges. Accordingly, as pointed out above,
the aforesaid points have been referred for our consideration in these appeals.
3] Criminal Appeal No.287 of 2009 arises from complaint numbered
as CC No.1866/SS/07 filed under Section 138 of the Negotiable Instruments Act,
1881 (for short “the Act”). The complaint was presented before the learned
th
Court, Ballard Pier, Mumbai (for short “the
Metropolitan Magistrate, 16
Magistrate”) on June 3, 2008 alleging that the accused issued 57 cheques drawn
on Laxmi Vilas Bank., Fort, Mumbai, of the total value of Rs.3,21,52,204/. The
said cheques were issued by the accused between December 2, 1997 and
March 9, 1998. The cheques were deposited by the complainant on April 5,
1998 and were returned by the Bank on April 6, 1998 with the remark “exceeds
arrangement”. The complainant issued notice through its Advocate on April 16,
1998 to the accused recording various facts and demanded the aforesaid
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amount. Reply was given by the accused through their Advocate on May 4, 1998
denying the allegations made in the notice. It is in these circumstances the
complaint was presented through Mr.Lewellyn Joseph Gratian Rego, Senior
Manager (Accounts) before the learned Magistrate on June 3, 1998. The
learned Magistrate made the following endorsement on the complaint:
“Presented by the complainant in person. Keep for
verification on 30
th
July, 1998.
Sd/
3
rd
June, 1998”
It is not in dispute that this complaint was not signed by the authorised
representative of the complainant. The complaint was verified on July 30, 1998
by the Senior Manager (Accounts) Mr.Lewellyn Joseph Gratian Rego. The
verification statement was duly signed by the said Rego. The learned Magistrate
passed the following order:
“ Issue summons against accused under Section 138/142
of the N.I. Act, returnable on 7/4/1999.
Sd/
3/12/1998”
4] In so far as Criminal Appeal No.288 of 2009 is concerned,
somewhat similar facts arise therein. In that case the accused issued 58
cheques drawn on the Indian Overseas Bank, Nariman Point, Mumbai of total
value of Rs.2,24,98,369/. The said cheques were issued by the accused
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between December, 1997 and March 8, 1998. The cheques were presented by
the complainant April 5, 1998. All cheques were returned unpaid by the Bank on
April 6, 1998 with the remark “refer to drawer”. By its advocate’s notice dated
April 16, 1998, the complainant recorded various facts and demanded payment
of the said amount. On behalf of the accused, reply through advocate was give
on May 4, 1998. It is in these circumstances, the complaint No.1865/SS/2007
was presented before the learned Magistrate on June 3, 1998 through
Mr.Lewellyn Joseph Gratian Rego, Senior Manager (Accounts). The learned
Magistrate made following endorsement :
“Presented by the complainant in person. Keep for
verification on 30/7/98.
Sd/.
3/6/1998”
The complaint was verified on July 30, 1998, by the Senior Manager (Accounts)
Mr.Lewellyn Joseph Gratian Rego, The verification statement was duly signed
by the said Rego. The learned Magistrate passed the following order:
“ Issue summons against accused under Section 138/142
of the N.I. Act, returnable on 7/4/1999
Sd/
3/12/1998”
5] It is not in dispute that the complaint was not signed by the
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authorised representative of the Company. It is in these circumstances, the
applications were moved by the accused in both the complaints on May 15, 2003
for recalling the process. It was inter alia contended that the complaints were
not signed by Mr.Rego, who had presented the complaints and that Vakalatnama
in favour of M/s.Dave and Company was also not signed by Mr.Rego. It was
submitted that the alleged complaints are bad in law and the subsequent
proceeding pending before the Court on the basis of the alleged complaints is
also bad in law. It was further submitted that cognizance taken by the learned
Magistrate on the basis of the alleged complaints which were not signed by or on
behalf of the complainant, was bad in law and the entire subsequent proceedings
taken before the Court, were bad in law. It was ultimately submitted that the
complaints are liable to be dismissed and process issued against the accused
deserves to be recalled.
6] The complainant replied the said applications and denied that the
complaints are bad in law for non signing of the complaints and Vakalatnama. It
was also submitted that the learned Magistrate has taken cognizance of the
offence after verification was signed by the complainant and the complaints are
valid in law. Reliance was placed upon a judgment of the learned Single Judge
of this Court in the case of Vijay (supra) and it was submitted that non signing of
the complaint when the verification is signed, does not vitiate the complaint. The
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learned Magistrate rejected the applications by order dated August 28, 2003.
The order was carried in Revision Applications before the Sessions Court,
Greater Mumbai. By order dated October 8, 2004, the Revision Applications
were dismissed on the ground of maintainability.
7] On behalf of the complainant, Affidavit in lieu of the examinationin
chief was filed on or about August 22, 2008. In both the complaints,
applications at Exhibit 7 under Section 136 of the Indian Evidence Act, 1872 were
taken out by the accused on August 11, 2008, inter alia contending that the
complaints under Section 138 of the Act are not maintainable in law as they are
not signed by the complainant. If that be so, the question of filing of affidavits of
evidence does not arise. This was replied by the complainant interalia
contending that filing of such applications is nothing but an abuse of process of
law and ought to be dismissed with exemplary costs. After narrating the
background, a prayer was made to reject the applications with costs.
8] The learned Magistrate by the impugned orders dated November
26, 2008 below exhibit 7 came to the conclusion that the unsigned and verified
complaints are illegal and as such are liable to be dismissed. He, accordingly,
acquitted the accused. It is against these orders, the two applications seeking
leave to appeal were preferred. The learned Single Judge granted leave to
appeal and issued notices on the appeal to the accused for final disposal at the
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stage of admission. In the light of judgment in the cases of Roy Joseph (supra)
and Vijay (supra), the learned Single Judge framed two points and referred the
said points to us.
9] We have heard Mr.Amit Desai, learned Senior Counsel on behalf of
the complainant, Smt.V.R.Bhosale, learned APP for respondent No.1 State and
Mr.A.M.Saraogi, learned counsel for the accused, at length.
10] Mr.Desai submitted that Section 142(a) of the Act provides that
notwithstanding anything contained in the Cr.P.C., no Court shall take
cognizance of any offence punishable under Section 138 except upon a
complaint, in writing, made by the payee or, as the case may be, the holder in
due course of the cheque. As against this, Section 2(d) of Cr.P.C. defines
“complaint” to mean any allegation made orally or in writing to a Magistrate, with
a view to his taking action under this Code, that some person, whether known or
unknown, has committed an offence, but does not include a police report. It is
submitted that under Section 2(d), a complaint can be made either orally or in
writing by any person. The complaint under the Act has to be necessarily in
writing and that too at the behest of payee or holder in due course of the cheque.
11] Mr.Desai further submitted that nonobstante clause of Section 142
of the Act overrides the provisions of Cr.P.C. to the following extent:
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(i) under Section 2(d) of the Cr.P.C., a complaint could be
either orally or in writing. Under the provisions of the Act,
the complaint has to be necessarily in writing.
(ii) in so far as the complaints under the Cr.P.C. are concerned,
criminal action can be set in motion by any person, even by
a stranger. In so far as the complaint under the Act is
concerned, a complaint can be filed only by the payee or
holder in due course of the cheque.
(iii) whereas under the Cr.P.C., a complaint could be made at
any time subject to the provisions of Chapter XXXVI, the
complaint under the Act has to be lodged within one month
from the date on which cause of action arises as per Section
142(b).
(iv)whereas under Article 511 of the First Schedule of the
Cr.P.C., if the offence is punishable with imprisonment for
less than 3 years or with fine only under any enactment
(other than IPC) such offence can be tried by any
Magistrate, under clause (c) of Section 142, no Court inferior
to that of Metropolitan Magistrate or Judicial Magistrate F.C.
can try any offence punishable under Section 138.
12] He further submitted that under the provisions of the Cr.P.C.,
wherever the Legislature intended that anything is required to be in writing
coupled with signature below the said writing, the Legislature has specially
provided therefor. For instance, he invited our attention to Sections 61, 70, 154,
162, 164(4), 200, 203, 204, 207 and 281 of the Cr.P.C. Section 61 of the
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Cr.P.C. provides that every summons issued by the Court under the Code shall
be in writing, in duplicate, signed by the Presiding Officer of the said Court.
Likewise one will find words “ in writing ” and “ signed by ” in Sections 70, 154,
162, 164(4), 200, 203, 204, 207, 281 of the Cr.P.C. Thus, wherever, the
Legislature provided particular thing is required to be in writing, as also the
signature below such writing is required, it has been specifically laid down in the
provisions itself. He further submitted that the phrase “in writing” will not
include the words “ signed by” and it has to be separately provided for. He
submitted that in the present case, the complainant is the Company which is a
juristic person and is represented by a natural person. The words “ signed by ”
cannot be added either in Section 142 of the Act or Section 2(d) of the Cr.P.C.
Though the complaint in the instant case is not signed, the authorised
representative of the complainant was examined on oath by the learned
Magistrate and the verification statement is duly signed by the said Officer.
Alternatively, it was submitted that if it is held that the complaint has to be signed
by the complainant it is mere irregularity and not an illegality warranting dismissal
of the complaint on that ground and the irregularity is curable. He also submitted
that, at any rate, no prejudice is caused to the accused for not signing the
complaint. In support of this submission, he relied upon the several judgments to
which reference will be made at appropriate place.
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13] On the other hand, Mr.A.M.Saraogi, learned counsel for the
accused, submitted that under Section 142(b) of the Act, complaint has to be
made within one month of the date on which the cause of action arises under
clause (c) of the proviso to Section 138. If the signature on the complaint is not
made at the time of presenting the complaint, still it can be made provided it is
within limitation as prescribed under Section 142(b). However, if the signature is
not made at the time of presenting the complaint, subsequently, the said defect
cannot be cured after the period of limitation is over. He invited our attention to
the provisions of Section 190 of the Cr.P.C. which enables the Magistrate of the
First Class to take cognizance of any offence upon receiving the complaint of
facts which constitute such offence. Section 200 of the Cr.P.C. provides that the
Magistrate taking cognizance of an offence of complaint shall examine upon
oath the complainant and the witness present, if any, and the substance of such
examination shall be reduced to writing and shall be signed by the complainant
and their witness and also by the Magistrate. In the light of this, he submitted
that the complaint presented before the Magistrate can be treated complete in all
respect only if the complaint is signed by the complainant and the verification is
also signed by the complainant. In support of this submission he relied on the
judgment of learned Single Judge of A.P. High Court in the case of P.Preetha,
Proprietor of Siddi Vinayaka Steels and Hardware Vs.Panyam Cements and
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Mineral Industries Limited and another, Vol.112 Company Cases 124.
14] He submitted that there is a purpose in insisting upon the signature
on the complaint as also signed verification statement by the complainant,
because, ultimately if the prosecution is found to be frivolous or otherwise mala
fide, the Court may direct the registration of the case against the complainant for
mala fide prosecution of the accused. The accused would also be entitled to file
a suit for damages. The verification of the complaint is essential under Section
200 of the Cr.P.C. before taking cognizance of the offence not only with a view to
finding out prima facie truth but also in order to identifying the person, who, in
case the prosecution is found to be frivolous or mala fide, would be liable to
answer the charge of perjury or to indemnify the accused. In other words, when
the complainant gives statement before the Magistrate in support of his
complaint, it is implicit that if certain statements are found to be false then the
identity of perjurer is explicitly made clear. So also, if the complaint is found to
be malicious and frivolous then the action for recovering the compensation can
be taken against such complainant. He, therefore, submitted that as a measure
of safeguard, the complaint has to be signed apart from the signed verification
statement by the complainant. In support of this submission, Mr.Saraogi,
learned Counsel for the accused, relied upon the judgment of the learned Single
Judge of this Court in the case of Roy Joseph (supra).
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15] Mr.Desai invited our attention to the judgment of the learned Single
Judge (R.K.Batta, J.) in the case of Finolex Industries Ltd. Vs.Pravin V. Sheth &
ors., 2002(2)All M.R.644, in particular paragraph 5 thereof, which reads as
under:
“5. The general principle of Criminal Law is that
any person can set the law in motion. However,
section 142 of the Negotiable Instruments Act which
deals with the Negotiable Instruments Act which deals
with cognizance of the offences provides that
notwithstanding anything contained in the Criminal
Procedure Code, 1973, no Court shall take
cognizance of any offence punishable under Section
138 except upon a complaint, in writing made by the
payee, or as the case may be, holder in course of the
cheque. Section 142 starts with nonobstante clause
which means that cognizance can be taken by the
Court on a complaint in writing. Therefore, the
definition of the expression, “complaint” under Section
2(d) which provides for an allegation made orally
would not be attracted in so far as cognizance of the
complaint filed under Section 142 of the Negotiable
Instruments Act is concerned. The requirement of
complaint being in writing is that when the facts are
found to be incorrect, action can be taken against the
complainant and it is for this purpose that verification
of the complainant is required to be made by the
complainant. Therefore, reading of Section 142 of the
Negotiable Instruments Act would go to show that for
the purpose of taking cognizance of any offence
punishable under Section 138 of the Negotiable
Instruments Act, there has to be a complaint in writing
by the payee or, as the case may be, holder in due
course of the cheque. The verification of the
complaint under Section 200 Code of Criminal
Procedure is altogether different since said
verification is required to be made in order to
determine prima facie truthfulness of the complaint for
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the purpose of issuing process. In my opinion,
therefore a complaint under Section 142 of the
Negotiable Instruments Act is required to be in writing
and signed by the complainant. Any complaint which
is not signed by the complainant is, therefore,
incomplete and on an incomplete complaint, no
cognizance can be taken under Section 142 of the
Negotiable Instruments Act. Besides this, verification
under Section 200 Criminal Procedure Code in this
case was done on 6.5.1996 and admittedly on this
date, the complaint was barred by limitation under
Section 142(b) of the Negotiable Instruments Act
which requires that such a complaint is required to be
made within one month from the date on which the
cause of action arises under clause (c) of the proviso
under Section 138 of the said Act, On the date of
verification, the complaint in question was barred by
limitation and obviously the Magistrate could not have
taken cognizance of the same. ”
In that case, the applicant before this Court had filed a complaint under Section
138 r/w.141 of the Act on March 6, 1996. The complaint was neither signed nor
verified by the complainant, but the complaint was signed by M/s.Crawford
Bayley, Advocates for the complainant. It further appears that no vakalatnama
was given by the complainant in favour of the said Advocates for the purpose of
filing the complaint. The verification of the complaint under Section 200 of Cr.P.C.
was recorded on May 6, 1996 and the process was issued against the
respondents therein on September 17, 1996. The application for recalling
process was filed by the respondents on March 23, 2001, which was resisted by
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the complainant by filing reply on July 12, 2001. Relying upon the judgment in
the case of M.A.Abdul Khuthoos Vs. M/s.Ganesh & Coy Oil Mills, 1999 Cri.J.J.
2432, the learned Magistrate allowed the application and recalled the process by
holding that the complaint was not a complaint in the eyes of law. This judgment
was delivered on March 4, 2002.
16] Mr.Desai invited our attention to the judgment of the learned Single
Judge (R.K.Batta, J.) in the case of Vijay (Supra), paragraph 5 of the judgment
reads as under:
“5. It is, no doubt, true that section 142(a) of the
Negotiable Instruments Act enjoins that no court shall
take cognizance of any offence punishable under
section 138 except upon a complaint in writing.
Nevertheless, this is a case where, though the
complaint was made in writing it was not signed and
the Magistrate on the same day had examined the
complainant under section 200 Criminal Procedure
Code and obtained signatures of the complainant on
the same day. On that date, the complainant was
well within the period of limitation. In this view of the
matter, I am of the opinion that nonsigning of the
complaint does go to the root of the matter whereas
rulings upon which reliance has been placed relate to
the bar on account of mandatory requirement of
registration, prior consent of Advocate General and
prior sanction for prosecution which go to the root of
the matter. In the case under consideration, there is
mere technical irregularity that the complaint was not
signed, but the complainant was very much available
in the Court and even his signature could have taken
by the Court, but it appears that this fact was not
noticed. The complainant was examined under
section 200, Criminal Procedure Code on the same
day and his signatures were taken on the verification.”
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In that case, the respondent no.1 filed a complaint before the Magistrate under
Section 138 of the Act r/w.Section 403, 406 and 420 Indian Penal Code, 1860
against the applicants. The complaint was presented on November 22, 1996
and on the same day, the complainant was examined under Section 200 of the
Cr.P.C.. By order dated February 6, 1997, process was issued under Section 138
of the Act. An application for dismissal of the complaint, as the same was not
signed by the complainant and as such was not maintainable, was made on April
1, 1997. The application was disposed of by order dated January 14, 1999
holding that the learned predecessor had already taken cognizance of the case
and the process was issued as such the accused could not raise objection. This
judgment was rendered on September 16, 2002.
17] Mr.Desai further invited our attention to the judgment of the learned
Single Court of the Karnataka High Court in the case of K.M.Maregowda Vs.
M/s.Seven Hills ExImport, 2004 Cri.L.J.4119 . After considering the provisions of
the Act as also the judgment of the Apex Court and other High Courts, the
learned Judge observed in paragraph 9 as under:
“9. It is trite that while construing a mandatory
provision prescribing eligibility criteria, nothing could
be added or deleted. So, the words “and signed” or
“under the signature” cannot be added after the
words “in writing” appearing in Section 142(a) of the
Act referred to already. If the Legislature intended
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that the complaint should also be signed by the
complainant, it would have added the words referred
to above but, deliberately, not done so for the reason
that, in such an event, juristic person or body
corporate etc., could not file complaints, thereby
negating the remedy provided under Section 138 of
the Act. So, the argument, that the complaint should
be under the signature of the complainant cannot be
upheld.”
In that case, the respondent before the High Court, presented a complaint before
the Court through its power of attorney holder for offence punishable under
under Section 138 of the Act under the signature of power of attorney holder.
After taking cognizance, the power of attorney holder was examined upon oath
by the learned Magistrate and thereafter the process was issued. On behalf of
the petitioner accused it was submitted that in view of Section 142 of the Act, the
complaint filed by the complainant through the power of attorney that too, without
the signature of the complainant to it, was not at all proper and recording of
sworn statement of the general power of attorney holder cannot be taken as
examining the complainant as envisaged under Section 200 of the Cr.P.C.,
subsequently, the proceedings required to be quashed.
18] Mr.Desai also strongly relied upon the judgment of the learned
Single Judge of the Punjab and Haryana High Court in the case of M.S.Shoes
East Ltd. and another Vs.Modella Knitwear Ltd. And another, Volume 103
Company Cases 816. In that case, the order dated November 11, 1997 passed
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by the Court of Judicial magistrate, Chandigarh was challenged in a Criminal
Revision before the High Court. By that order, the learned Magistrate disposed
of two applications filed by the complainant Modella Knitwear Ltd. and the other
by M.S.Shoes East Ltd. Modella Knitwear Ltd. submitted an application before
the learned Magistrate in complaint under Section 138 of the Act with a request
for granting it permission to put signatures on the complaint or in the alternative
to treat the documents of the complaint duly signed attached with the application
as part of the original complaint. M.S.Shoes East Ltd. filed reply praying for
dismissal of the complaint on the ground that the complaint was not signed by
the payee or the holder in due course of the cheque and as such requirement of
Section 142(a) of the Act was not complied with and the complaint under Section
138 of the Act is, therefore, liable to be dismissed. The unsigned complaint is no
complaint in the eyes of the law and thus the Magistrate could not take
cognizance nor could summon the accused. Moreover, the defence of the
petitioner was prejudiced because of the absence of signature on the
complaint. The learned Magistrate passed following order :
Present : Complainant in person.
Complaint presented today. The same be made over to the
court of Miss Harpreet Kaur, learned Judicial Magistrate, First
Class, Chandigarh for disposal according to law. The complainant
is directed to appear before the court on April 17, 1996.
Announced :16496. (Sd.) Chief Judicial Magistrate
Chandigarh
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19] It was observed that the complaint was not signed inadvertently by
the complainant though the complaint in writing was presented in the Court by
him personally and the learned Magistrate took cognizance on the basis of
written complaint. In paragraph 21 of the judgment, passage from the judgment
of the Apex Court in the case of Chitranjan Das Vs. State of West Bengal, AIR
1963 SC 1696 to the following effect was reproduced:
“Requirements of procedure are generally intended to
subserve the ends of justice, and so, undue emphasis on mere
technicalities in respect of matters which are not of vital or
significant importance in a criminal trial, may some times frustrate
the ends of justice. Where the provisions prescribed by the law of
procedure are intended to be mandatory the Legislature indicates
its intention in that behalf clearly and contravention of such
mandatory provisions may introduce a serious infirmity in the
proceedings themselves; but where the provisions made by the law
of procedure are not of vital importance but are, nevertheless,
intended to be observed, their breach may not necessarily vitiate
the trial unless it is shown that the contravention in question has
caused prejudice to the accused. This provision is made clear by
sections 535 and 537 of the Criminal Procedure Code.”
After considering the authoritative pronouncement of the Apex Court, where the
noncompliance with the mandatory provisions are not of vital importance but are
nevertheless intended to be observed, their breach may not necessarily vitiate
the trial unless it is shown that the contravention in question has caused
prejudice to the accused. It was further observed that the accused was
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contesting the case from the time of his appearance. The notice of accusation
has been served upon the accused and the learned defence counsel had not
been able to show as to what prejudice has been caused to the accused due to
omission of the signature of the complainant. If no prejudice has been caused to
the right of accused due to this omission then the mere omission of the signature
cannot be a ground to dismiss the complaint. After considering the provisions
of Section 142 of the Act, the learned Judge observed thus:
“ A reading of the above section would show that no
court would take cognizance of any offence
punishable under section 138 except upon a
complaint, in writing, made by the payee or, by the
holder of the cheque in due course. This section
starts with a specific provision that the provisions of
the Negotiable Instruments Act shall apply
notwithstanding anything contained in the Code of
Criminal Procedure with regard to those provisions
given in subsections (a), (b) and (c) of this section,
i.e., section 142. Thus, in order to constitute a valid
complaint for the purpose of section 138 of the Act,
there should be a complaint and that complaint must
be in writing. A close scrutiny of the provisions of
section 142 of the Act is not obligatory on the part of
the complainant to establish that his complaint was
signed by him or it. The word “complaint” has not
been defined under the Act, but luckily it has been
defined under the Code of Criminal Procedure and
according to section 2(d) of the Code “complaint”
means any allegation made orally or in writing to a
magistrate, with a view to his taking action under this
Code, that some person, whether known or unknown,
has committed an offence, but does not include a
police report. The complaint under section 138 of the
Act is supposed to be tried as a warrant case
instituted otherwise than on a police report. The
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scheme of the Code shows that wherever the
Legislature wanted that any action on the part of a
litigant should be signed, it has so stated in the
relevant provisions. However, where the Code wants
that a written complaint would be enough for the
purpose of taking cognizance, or for the purpose of
summoning the accused the things can go in that
fashion without any difficulty. I would like to make a
mention of section 190 of the Code of Criminal
Procedure. As per this section the magistrate of the
first class or second class can take cognizance of any
offence upon receiving a complaint of facts which
constitute such offence. It does not talk that the
complaint should be signed by the complainant. I
have already incorporated the definition of
“complaint” as defined under the Code. As per
section 200 of the Code once a complaint is instituted
before a magistrate, he is supposed to examine upon
oath the complainant and the witnesses. Their
statements are supposed to be reduced into writing
and those statements are further supposed to be
signed by the complainant and the witnesses,
meaning thereby that the complaint can be instituted
in writing. It need not be signed by the complainant
but the statement which shall be made by the
complainant or on his or its behalf shall be reduced
into writing and such statement is supposed to be
signed by the complainant. Besides that, the
statements of the witnesses examined by the
complainant are also supposed to be signed,
meaning thereby wherever the Code wanted that a
particular act should be signed, it has to be signed. If
the Code wants a written document and if a
complaint is filed in writing before a Magistrate, who
has taken cognizance over the matter, such a
complaint is not bad in the eyes of law. To proceed
further, I would also like to refer to the provisions of
section 154 of the Code of Criminal Procedure, which
again states that every information relating to the
commission of a cognizable offence, if given orally to
the officer in charge of a police station, shall be
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reduced into writing. It shall be read over to the
informant and it shall also be signed by the person,
who gives the information. Similarly, a reading of
section 164 of the Code indicates that if the
magistrate is to record a confession, as per sub
section (4) of this section it is supposed to be signed
by the person making the confession.”
20] Mr.Desai also invited our attention to the judgment of the Division
Bench of Andhra Pradesh High Court in the case of S.P.Sampathy and etc. Vs.
Smt.Manju Gupta and another etc, 2002 Cri.L.J. 2621, where the complaint was
filed under Section 138 of the of the Act. It was held that from perusal of Section
5 of the Cr.P.C, it is clear that the same lays down the procedure for trial Court of
all criminal cases except under any special or local law for the time being in force
or any special form of procedure prescribed by any other law for the time being in
force. Therefore, for the purpose of taking cognizance, the provisions of Cr.P.C.
have been excluded by Section 142 of the Act and any reference or reliance
placed on Section 198 or Chapter XX of the Cr.P.C. is misplaced. The trial Court
gets jurisdiction to entertain a complaint only on satisfaction of two conditions (1)
that the complaint should be in writing and (2) it should be made by the payee or
holder in due course of the cheque. When the law demands that the complaint
should be in writing by the payee that means the complaint should be made and
signed by the payee or the holder in due course. In that case the complaint
was made in the name of the complainant but signed by his power of attorney
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holder. It was held that the complaint cannot be signed by the power of attorney
holder on behalf of the payee under Section 138 of the Act. The complaint can
only be filed in writing by the payee or holder in due course of the cheque.
21] Mr.Desai invited our attention to the judgment of the Apex Court in
the case of Pankajbhai Nagjibhai Patel Vs. State of Gujarat and another, (2001) 2
SCC 595. After considering Section 142 of the Act, it was observed in paragraph
6 as under:
“6. It is clear that the aforesaid non obstante expression is
intended to operate only in respect of three aspects, and
nothing more. The first is this: Under the Code a Magistrate
can take cognizance of an offence either upon receiving a
complaint, or upon a police report, or upon receiving
information from any person, or upon his own knowledge
except in the cases differently indicated in Chapter XIV of the
Code. But Section 142 of the NI Act says that insofar as the
offence under Section 138 is concerned no court shall take
cognizance except upon a complaint made by the payee or
the holder in due curse of the cheque.”
He further submitted that for the purpose of computing the period of limitation
what is relevant is the date when the complaint is filed or criminal proceedings
are initiated and not the date when the Court/Magistrate takes cognizance or
issues process. In support of this submission, he relied upon a judgment of the
Apex Court in the case of Japani Sahoo Vs. Chandra Sekhar Mohanty, (2007) 7
SCC 394. In the alternative, he submitted that non signing of the complaint is
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mere irregularity and not illegality. Not signing of the complaint does not affect
the proceedings and the irregularity is curable. He submitted that in the instant
case, the learned Magistrate recorded that on June 3, 1998 the complaint was
presented in person. Originally, Mr.Rego, Senior Manager (Accounts) had
presented the complaint on June 3, 1998. The verification statement was signed
by said Rego before the learned Magistrate on July 30, 1998. His name was
substituted by inserting the name of Mr.T.R.Suryanarayanan, VicePresident –
Business Accounts Polyester and the cause title of the complaint was signed by
Mr.Suryanarayanan. He did not dispute that the complaint was not signed by the
said Rego when it was presented before the learned Magistre. However, the
verification statement was signed by the said Rego on July 30, 1998 before the
learned Magistrate.
22] Before we consider the rival submissions advanced on behalf of the
parties, it would be advantageous to appreciate the scheme of the Act. The Act
was amended by the Banking, Public Financial Institutions and Negotiable
Instruments Laws (Amendment) Act, 1988 wherein a new Chapter XVII was
incorporated for penalties in case of dishonour of cheques due to insufficiency of
funds in the account of the drawer of the cheque. These provisions were
incorporated with a view to encouraging the culture of use of cheques and
enhancing the credibility of the instrument. The provisions prior to Amendment
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Act 55 of 2002 in the Act, namely, sections 138 to 142 in Chapter XVII were
found deficient in dealing with dishonour of cheques. Not only the punishment
provided in the Act was proved to be inadequate, the procedure prescribed for
the Courts to deal with such matters was found to be cumbersome. The
Courts were unable to dispose of such cases expeditiously in a time bound
manner in view of the procedure contained in the Act.
23] A large number of cases were reported to be pending under
section 138 of the Act in various courts in the country. Keeping in view the large
number of complaints under the said Act pending in various Courts, a Working
Group was constituted to review section 138 of the Act, and make
recommendations as to what changes were needed to effectively achieve the
purpose of that section. The recommendations of the Working Group along with
other representations from various institutions and organisations were examined
by the Government in consultation with the Reserve Bank of India and other
legal experts, and a Bill, namely, the Negotiable Instruments (Amendment) Bill,
2001 was introduced in the Lok Sabha on July 24, 2001. The Bill was referred to
Standing Committee on Finance which made certain recommendations in its
report submitted to Lok Sabha in November, 2001. Keeping in view of the
recommendations of the Standing Committee on Finance and other
representations, the provisions of Section 138, 141, 142 were amended. Section
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143 to 147 were inserted by the Negotiable Instruments (Amendment and
Miscellaneous Provisions) Act, 2002 w.e.f. February 6, 2003. The said
amendments in the Act are aimed at early disposal of cases relating to dishonour
of cheques, enhancing punishment for offenders, introducing electronic image of
a truncated cheque and a cheque in the electronic form as well as exempting an
official nominee director from prosecution under the Act. However no
amendment to the existing Section 142(a) of the Act was made.
24] It is basic principle of construction of statute that the same should
be read as a whole, then chapter by chapter, section by section and word by
word. Recourse to construction or interpretation of statute is necessary when
there is ambiguity, obscurity, or inconsistency therein and not otherwise. An
effort must be made to give effect to all parts of the statute and unless absolutely
necessary, no part thereof shall be rendered surplusage or redundant. True
meaning of a provision of law has to be determined on the basis of what it
provides by its clear language, with due regard to the scheme of law. Scope of
legislation on the intention of the legislature cannot be enlarged when the
language of the provision is plain and unambiguous. In other words, statutory
enactments must ordinarily be construed according to their plain meaning and no
words shall be added, altered or modified unless it is plainly necessary to do so
to prevent a provision from being unintelligible, absurd, unreasonable,
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unworkable or totally irreconcilable with the rest of the statute, as laid down by
the Apex Court in the case of Bhavnagar University Vs.Palitana Sugar Mill (P)
Ltd., (2003)2 SCC 111.
25] Section 142 of the Act reads as under :
“ 142.Cognizance of offences. Notwithstanding anything
contained in the Code of Criminal Procedure, 1973,
(a) no Court shall take cognizance of any offence
punishable under section 138 except upon a complaint, in
writing, made by the payee or, as the case may be, the
holder in due course of the cheque;
(b) such complaint is made within within one month of
the date on which the cause of action arises under clause (c)
of the proviso to section 138:
[Provided that the cognizance of a complaint may be taken
by the Court after the prescribed period, if the complainant
satisfies the Court that he had sufficient cause for not
making a complaint within such period;]
(c) no Court inferior to that of a Metropolitan Magistrate or a
Judicial Magistrate of the first class shall try any offence
punishable under section 138.]”
The controversy in the present case concentrates on construction of Section
142(a) of the Act and in particular phrase “in writing” employed therein. It
provides that notwithstanding anything contained in the Cr.P.C., no Court shall
take cognizance of any offence punishable under Section 138 of the Act except
upon a complaint in writing made by the payee or as the case may be the
holder in due course of the cheque. The moot question in the instant case is
what is meant by complaint in writing, whether the complaint should be in writing
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simplicitor or complaint being in writing requires signature below such writing.
26] In the light of the judgment of the Apex Court in the case of
Bhavnagar (supra), let us analyse the provisions of the Act. Section 4 of the
Act defines Promissory Note to mean an instrument in writing (not being a bank
note or a currency note) containing an unconditional undertaking, signed by the
maker, to pay a certain sum of money only to, or to the order of, a certain person,
or to the bearer of the instrument. Section 5 of the Act defines Bill of exchange
to mean an instrument in writing containing an unconditional order, signed by
the maker, directing a certain person to pay a certain sum of money only to, or to
the order of, a certain person or to the bearer of the instrument. Section 6 of the
Act defines a cheque. Explaination I(a) thereof reads thus:
“a cheque in the electronic form” means a cheque which
contains the exact mirror image of a paper cheque, and is
generated, written and signed in a secure system ensuring the
minimum safety standards with the use of digital signature (with
or without biometrics signature) and asymmetric crypto system.
27] Section 2(d) of the Cr.P.C. defines the complaint to mean any
allegation made orally or in writing to a Magistrate, with a view to his taking
action under this Code, that some person, whether known or unknown, has
committed an offence, but does not include a police report. The comparison of
Section 2(d) of the Cr.P.C. and Section 142 of the Act shows that ;
1) whereas under Section 2(d) of the Cr.P.C. complaint can be
made either orally or in writing, under the provisions of the
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Act the complaint has to be necessarily in writing.
2) whereas the complaint under Cr.P.C. can be made by any
person, in so far as the complaint under the Act is
concerned, it can be filed only by the payee or holder in due
course of the cheque.
28] As observed by the Apex Court in the Case of Pankajbhai
Nagjibhai Patel (Supra), it is clear that the nonobstante expressed in Section
142 is intended to operate only in respect of three aspects that are as under:
1) under the Cr.P.C. a Magistrate can take cognizance of
offence either upon receiving a complaint or upon the police
report or upon receiving information from any person or
upon his own knowledge except in the cases differently
indicated in Chapter XIV of the Cr.P.C. Under Section 142
of the Act in so far as the offence under Section 138 is
concerned, no Court shall take cognizance except upon a
complaint made by payee or the holder in due course of the
cheque.
2) under the Cr.P.C. complaint can be made at anytime subject
to the provisions of Chapter XXXVI. As far as the offence
under Section 138 of the Act is concerned, such complaint
has to be made within one month from the date on which
cause of action arises under Clause (c) of the proviso to
Section 138.
3) Under Article 511 of the first Schedule of the Cr.P.C. if the
offence is punishable with imprisonment for less than three
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years or with fine only under any enactment (other than IPC)
such offence can be tried by any Magistrate. Normally,
Section 138 of the Act which is punishable with maximum
imprisonment of two years would have fallen within the
scope of said Article, But Section 142 of the Act says that for
the offence under Section 138, no court inferior to that of
Metropolitan Magistrate or Judicial Magistrate of the First
Class shall try the said offence. Thus, nonobstante clause
in Section 142 of the Act is not intended to expand the
powers of the Magistrate of the First Class beyond what is
fixed in Chapter III of the Cr.P.C.
29] Under the provisions of the Cr.P.C. wherever the Legislature
intended that something is required in writing coupled with the signature below
the said writing, the Legislature has specifically provided therefor. Mr.Desai
invited our attention to Sections 61, 70, 154, 162, 164(4), 200, 203, 204, 207 and
281 of the Cr.P.C. Section 200 of the Cr.P.C. to the extent it is relevant to the
present controversy reads as under :
“ 200.Examination of complainant . A Magistrate taking
cognizance of an offence on complaint shall examine upon
oath the complainant and the witnesses present, if any, and
the substance of such examination shall be reduced to
writing and shall be signed by the complainant and the
witnesses, and also by the Magistrate:”
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Thus, when the Magistrate takes cognizance of offence on complaint, he has to
examine upon oath the complainant and the witnesses present, if any, and
substance of such examination has to be reduced in writing and has to be signed
by the complainant and the witnesses and also by the Magistrate.
30] The submission of Mr.Saraogi, learned counsel that as a measure
of safeguard the complaint has to be signed by the complainant, in our opinion,
does not consider the importance of signed verification statement of the
complainant. If ultimately the prosecution is found to be frivolous or otherwise
mala fide, the Court can direct the registration of the case against the
complainant for mala fide prosecution of the accused. The accused would also
be entitled to file a suit for damages. The verification of the complaint is
essential under Section 200 of the Cr.P.C. before taking cognizance of the
offence not only with a view to finding out prima facie truth but also identifying
the person, who, in case the prosecution is found to be frivolous or mala fide,
would be answerable to the charge of perjury or indemnify the accused. When
the complainant gives statement before the Magistrate in support of his
complaint, it is implicit that if certain statements are found to be false, then the
identify of perjurer is explicitly made clear. So also, if the complaint is found to
be malicious and frivolous, then the action for recovering the compensation can
be taken against such complainant The apprehension expressed by Mr.Saraogi,
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in our judgment, is wholly unfounded. Even, as per Section 190 of Cr.P.C., the
Magistrate may take cognizance of any offence upon receiving a complaint of
facts which constitute such offence. It does not lay down that the complaint has
to be signed by the complainant. Combined reading of Sections 190 and 200 of
the Cr.P.C. and Section 142(a) of the Act, leads to the conclusion that under the
Act the complaint can be instituted in writing, however, it need not be signed by
the complainant. But the Magistrate taking cognizance shall examine upon oath
the complainant and the witnesses present, if any, and the substance of such
examination shall be reduced to writing and such statement is required to be
signed by the complainant.
31] We are further of the opinion that that the language employed in
Section 142(a) of the Act is plain, unambiguous and clear. We consequently
cannot add the words “ ” and delete comma and the words “
and signed by made
by ” after the words “ in writing ” occurring in Section 142(a) of the Act. We are
also unable to agree that the phrase “ in writing ” will also include the words
“ signed by ” as we are of the opinion that wherever the Legislature intended that
the something is required in writing coupled with signature below such writing,
the Legislature has specially provided therefor both under the Act. It is required
to be noted that as per Section 2(d) of the Cr.P.C., a complaint can be either oral
or in writing. If the contention of Mr.Saraogi is to be accepted, it would mean that
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wherever complaint is made in writing as per Section 2(d) of the Cr.P.C., such
complaint would not be maintainable and it will have to be rejected once it is
found that the same is not signed. It is, therefore, not possible to give such a
meaning by adding the word “signature” when the Legislature only contemplated
the complaint in writing and not beyond that.
32] In the present case, as noted earlier the complaint was presented
in person on June 3, 1998. The complaint was verified on July 30, 1998 and the
verification statement was duly signed by the authorised Officer of the
complainant. We fail to appreciate as to how any prejudice is caused to the
accused for non signing the complaint. The statement made on oath and signed
by the complaint safeguards the interest of the accused. Considering the
aforesaid aspects, we are clearly of the opinion that the requirement of Section
142(a) of the Act is that the complaint has necessarily to be in writing and the
complaint can be presented by payee or holder in due course of the cheque. It
need not be signed by the complainant. If the Legislature intended that the
complaint under the Act, apart from being in writing, is also required to be signed
by the complainant, the Legislature would have used different language.
33] In the light of the view taken by us, we respectfully agree with the
law laid down by the learned Single Judge of Panjab and Haryana High Court in
the case of M.S.Shoes East Ltd. (supra) as also judgment of the learned Single
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Judge of the Karnataka High Court in the case of K.M.Maregowda (Supra). In
so far as the judgment of the learned Single Judge of this Court in the case of
Roy Joseph (Supra) is concerned, in paragraph 10 of the Judgment, the learned
Single Judge reproduced the legal requirement of a valid complaint for the
purpose of the Act. After quoting observations of the Apex Court in the case of
Sabitha Ramamurthy and another Vs. R.B.S.Channabasavaradhya, 2006 AIR
SCW 4582, the learned Judge observed as under :
“ The statutory provision requires, therefore, that the
complaint must be signed by the complainant and
that it shall be verified by the complainant, is,
therefore, incomplete and on the basis of such
incomplete complaint, no cognizance can be taken
under Section 142 of the Negotiable Instruments Act.”
With great respect, we are unable to subscribe to the said view. In our opinion,
the learned Single Judge, with utmost respect, has mixed up the requirement of
complaint in writing under Section 142(a) of the Act with that of verification at the
time of taking cognizance under Section 200 of the Cr.P.C. that requires
signature of the complainant. We are also unable to subscribe to the view
expressed by the learned Single Judge of this Court in the case of Finolex
Industries(Supra), wherein it was held that a complaint under Section 142 of the
Act is required to be in writing and signed by the complainant. That judgment
was rendered on March 4, 2002. The verification of the complaint under Section
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200 of the Cr.P.C. is necessary and the purpose of such verification before taking
cognizance of the offence is essential not only with a view to finding out prima
facie truth, but also, for safeguarding the interest of the accused.
34] As far as the judgment of the learned Single Judge in the case of
Vijay (supra) is concerned, the learned Single Judge in paragraph 5 observed
that:
“5. It is, no doubt, true that section 142(a) of the
Negotiable Instruments Act enjoins that no court shall
take cognizance of any offence punishable under
section 138 except upon a complaint in writing.
Nevertheless, this is a case where, though the
complaint was made in writing it was not signed and
the Magistrate on the same day had examined the
complainant under section 200 Criminal Procedure
Code and obtained signatures of the complainant on
the same day. On that date, the complainant was
well within the period of limitation. In this view of the
matter, I am of the opinion that nonsigning of the
complaint does go to the root of the matter whereas
rulings upon which reliance has been placed relate to
the bar on account of mandatory requirement of
registration, prior consent of Advocate General and
prior sanction for prosecution which go to the root of
the matter. In the case under consideration, there is
mere technical irregularity that the complaint was not
signed, but the complainant was very much available
in the Court and even his signature could have taken
by the Court, but it appears that this fact was not
noticed. The complainant was examined under
section 200, Criminal Procedure Code on the same
day and his signatures were taken on the verification.”
The question that is posed before us was not squarely raised in that judgment.
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Though the complaint in writing but not signed by the complainant was presented
on November 22, 1996, the learned Magistrate examined the complainant on the
same day under Section 200 of the Cr.P.C. and obtained signature of the
complainant on the same date i.e.November 22, 1996. On that date, the
complaint was well within the period of limitation. In that view of the matter, the
learned Judge was of the opinion that non signing of the complaint did not go to
the root of the matter. We may note in that judgment in the case of Vijay (supra)
was rendered on September 16, 2002. We also do not agree with the Division
Bench judgment of Andhra Pradesh High Court in the case of S.P.Sampathy
(supra) as also the judgment of the learned Single Judge of A.P. High Court in
the case of P.Preetha (supra).
35] The learned Single Judge has formulated two points. We are
taking the view that the complaint under Section 142(a) of the Act requires to be
in writing and does not further require to be signed by the complainant, as at the
time of taking cognizance, the learned Magistrate examines the complainant on
oath and the verification statement is signed by the complainant. In our opinion,
since the law does not require signature of the complainant on the complaint
under Section 138 of the Act, we do not consider it appropriate to answer point
no.2 as our answer to point No.1 is in affirmative. Hence, our answer to point
No.1 is that even if a complaint under Section 142(a) of the Act is not signed by
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the complainant in spite of verification of complainant, it will not be “nonentia”
and the prosecution will lie on such complaint. Point No.1 is answered
accordingly. In the light of our answer to point No.1 let the papers be placed
before the learned Single Judge who seized of these cases.
36] After dictating the judgment in the open Court and before signing
the same, learned counsel for the accused orally prayed on March 18, 2010 for
permission to cite few judgments. We have heard Mr.Saraogi, learned Counsel
for accused and Mr.Amit Desai, learned Senior Counsel for the complainant.
37] Mr.Saraogi, learned counsel, invited out attention to the following
judgment of the Apex Court:
1. Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd., (2008)4
SCC 755.
2. O.S.Singh and another Vs. Union of India and another,
(1996)7 SCC 37.
In the case of Gujarat Urja Vikas Nigam (supra) the Apex Court has observed in
paragraph 53 as under:
“53.In the chapter on “Exceptional Construction” in his book
on Interpretation of Statutes, Maxwell writes:
“WHERE the language of a statute, in its ordinary
meaning and grammatical construction, leads to a manifest
contradiction of the apparent purpose of the enactment, or to
some inconvenience or absurdity, hardship or injustice,
presumably not intended, a construction may be put upon it
which modifies the meaning of the words, and even the
structure of the sentence. This may be done by departing
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from the rules of grammar, by giving an unusual meaning to
particular words, by altering their collocation, by rejecting
them altogether, or by interpolating other words, under the
influence, no doubt, of an irresistible conviction that the
legislature could not possibly have intended what its words
signify, and that the modifications thus made are mere
corrections of careless language and really give the true
meaning.”
38] As we have already indicated that the language employed in
Section 142(a) of the Act is plain, unambiguous and clear, we cannot add
anything in that Section as observed by the Apex Court in the case of Bhavnagar
University (supra). Reliance placed by Mr.Saraogi on the judgments of the Apex
Court in the cases of (1) Gujarat Urja Vikas Nigam Ltd. Vs. Essar Power Ltd.,
(2008)4 SCC 755 and (2) O.S.Singh and another Vs. Union of India and another,
(1996)7 SCC 37, is, therefore, misplaced. Accordingly, we answer point No.1 in
the affirmative. It is held that the complaint under Section 138 of the Act is
maintainable. When such complaint is subsequently verified by the complainant
and the process is issued by the Magistrate after verification, it cannot be said
that the said complaint is “nonentia” and the prosecution of such complaint, in
our view, therefore, is maintainable. Since the answer to point No.1 is affirmative
it is not necessary to decide point no.2.
39] Before parting, we have noted one thing in the matter. The accused had
moved applications earlier in both the complaints on May 15, 2003 for recalling
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the process on the ground that the complaints were not signed by the authorised
representative of the complainant who had presented the complaints. The
learned Magistrate (Mr.S.H.Jagiasi) rejected the applications by order dated
August 28, 2003. Subsequently, the accused filed applications under Section
136 of the Indian Evidence Act, 1872 on August 11, 2008 inter alia raising self
same objections. The learned Magistrate (Mr.R.K.Bhise) allowed the
applications by impugned order dated November 26, 2008.
40] In view of our answer to point no.1, let the appeals be placed before
the learned single Judge for deciding the appeals on merits. We make it clear
that we have not examined any other point.
[R.G. KETKAR, J.] [P.B. MAJMUDAR, J.]
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