Full Judgment Text
Crl.A. No.247 of 2016 etc. @ SLP(Crl.)No.8058 of 2012 etc.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.247 OF 2016
[Arising out of S.L.P.(Crl.)No.8058 of 2012]
K.S. Joseph …..Appellant
Versus
Philips Carbon Black Ltd. & Anr. …..Respondents
W I T H
CRIMINAL APPEAL NO.248 OF 2016
[Arising out of S.L.P.(Crl.)No.8092 of 2012]
J U D G M E N T
SHIVA KIRTI SINGH, J.
1. By the common impugned order dated 04.09.2012 passed in
Crl.M.C. Nos.2902 and 2903 of 2012 by the High Court of Kerala at
Ernakulam under Section 482 of the Code of Criminal Procedure (for
short, ‘Cr. P.C.’) prayer of the appellant to quash order of cognizance
and issuance of summons in a case under Section 138 of the
Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’)
has been rejected by a very short and summary order to the effect that
Signature Not Verified
Digitally signed by
GULSHAN KUMAR
ARORA
Date: 2016.04.11
16:37:50 IST
Reason:
submissions were not impressive and if the appellant has any
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Crl.A. No.247 of 2016 etc. @ SLP(Crl.)No.8058 of 2012 etc.
sustainable ground of defence, he can canvass the same before the
Magistrate.
2. The appellant is an accused in two cases of similar nature
wherein cheques issued by the accused person in favour of the
complainant have not been honoured. On behalf of appellant it was
highlighted that the cheques bounced on 24.01.2006 because of a
direction to stop payment issued by the appellant because he had
allegedly already made all the required payments. His defence that
five blank cheques had been given to the complainant by way of
security cannot be considered at the present stage but he has raised
three other legal grounds. Firstly, the complaint suffered from delay
of 62/63 days and the same had to be condoned after notice but that
was not done. The second grievance of the appellant is that
cognizance could not have been taken without complying with the
mandate of Section 200 of the Cr.P.C. and examining the complainant
on solemn affirmation. The last submission of learned senior counsel
for the complainant, Mr. K. Radhakrishnan is that the appellant being
an accused and a resident of an area outside the territorial
jurisdiction of the Magistrate who has issued summons, an enquiry
within the meaning of Section 202 of the Cr.P.C. was mandatory and
since that was not done, the order of cognizance and issuance of
summons is bad in law.
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3. So far as the issue of examination of complainant on solemn
affirmation under Section 200 of the Cr.P.C. is concerned, the
submissions are misconceived on account of Section 145 of the Act
which was inserted along with some other Sections through an
amendment in the year 2002 w.e.f. 06.02.2003. Section 145 of the
Act is as follows :
“ 145. Evidence on affidavit. -(1) Notwithstanding
anything contained in the Code of Criminal Procedure,
1973 (2 of 1974), the evidence of the complainant may be
given by him on affidavit and may, subject to all just
exceptions be read in evidence in any enquiry, trial or
other proceeding under the said Code.
(2) The Court may, if it thinks fit, and shall, on the
application of the prosecution or the accused, summon
and examine any person giving evidence on affidavit as to
the facts contained therein.”
4. 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 Cr.P.C.
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 Cr.P.C. This view is
also supported by the judgment of this Court in the case of Mandavi
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Cooperative Bank Ltd. v. Nimesh B. Thakore . No doubt this
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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 Cr.P.C. is rejected as untenable. The other plea relating to
delay of 62 days and taking of cognizance without issuing notice to
dispense with such delay is however found to have substance. The
relevant provision under Section 142 of the Act requires making of the
complaint within one month of cause of action arising on account of
non-compliance with the demand in the notice to make payment
within 15 days. According to appellant the notice was dated
03.02.2006 alleging non-payment of two cheques each for
Rs.1,80,000/-. Allegedly the appellant had sent a reply denying his
liability through a reply dated 20.02.2006. The complaint was filed on
24.05.2006. Prima facie , in view of aforesaid dates the complaint was
beyond the permissible period. No doubt the court has been
empowered to take cognizance even after the prescribed period but
(2010) 3 SCC 83
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only if the complainant satisfies the court that he had sufficient cause
for not making complaint within the prescribed period.
6. On the basis of Order Sheet of the court of Magistrate it has
been shown that initially summons were ordered to be issued to the
accused on 05.12.2006 after recording a single sentence that the
complainant was represented. Since proper steps were not taken
summons appear to have been re-issued at the correct address on
22.10.2011. The orders of the Magistrate do not show any application
of mind to the issue of delay nor has delay been condoned before
issuance of summons. The Order Sheet does not show any
application of mind to the fact that the accused was shown to be
residing at a place beyond his jurisdiction and therefore an enquiry or
investigation may be required on account of amendment in Section
202 of the Cr.P.C. inserted by the Act 25 of 2005, effective from
23.06.2006. The relevant part of Section 202 is reproduced
hereinbelow :
" 202. Postponement of issue of process. -(1) Any
Magistrate, on receipt of a complaint of an offence of
which he is authorised to take cognizance or which has
been made over to him under section 192, may, if he
thinks fit, and shall, in a case where the accused is
residing at a place beyond the area in which he exercises
his jurisdiction postpone the issue of process against the
accused, and either inquire into the case himself or direct
an investigation to be made by a police officer or by such
other person as he thinks fit, for the purpose of deciding
whether or not there is sufficient ground for proceeding:
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Provided ……. …… …… ……”
(Emphasis supplied)
7. The amendment has a purpose in requiring the concerned
Magistrate to postpone the issue of process against the accused if he
is residing at a place beyond the area of his jurisdiction and to hold
an enquiry or direct an investigation by a police officer or any other
person for the purpose of deciding whether or not there is sufficient
ground for proceeding. It is to avoid unnecessary harassment to the
proposed accused. In such an enquiry, the Magistrate may take
evidence of witness on oath but in view of Section 145 of the Act,
complainant’s evidence on affidavit will also be permissible for the
purpose of such enquiry.
8. Learned senior counsel for the appellant has relied upon
judgment of this Court in the case of P.K. Choudhury v.
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Commander, 48 BRTF (GREF) to support his submission that for
condoning delay in filing complaint beyond the period of limitation,
natural justice warrants notice to the accused so as to grant him an
opportunity to show that the delay should not be condoned.
9. Learned senior counsel for the appellant has also placed
reliance upon a judgment of this Court in the case of Vijay Dhanuka
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v. Najima Mamtaj to support his submission based upon
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(2008) 13 SCC 229
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(2014) 14 SCC 638
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requirement of Section 202 of the Cr.P.C. warranting an enquiry or
investigation where the accused is found to be residing outside the
jurisdiction of the Magistrate.
10. Learned counsel for the respondent-complainant could not place
any material to counter the two submissions noted above. We have
already noted earlier that the Order Sheet does not disclose any
application of mind either to the issue of delay or to the requirement
of Section 202, Cr.P.C. Since the order of the Magistrate issuing
summons is clearly without due application of mind to the issue of
delay, we have not gone into the detailed consideration of the
correctness of submission based upon Section 202 of the Cr.P.C. and
as to whether such requirement of enquiry or investigation is
attracted even for offences under the Act. This question of law is
therefore left open. But on the ground of non application of mind to
the issue of delay and considering that the High Court has passed a
summary order without even noticing the contentions advanced on
behalf of the appellant, we set aside the impugned order of the High
Court as well as the order of cognizance summoning the accused
passed by the learned Magistrate. The Magistrate is directed to
re-consider the relevant facts of the Complaint Case including the
issue of delay and its condonation in accordance with law as well as
the requirement of enquiry etc. under Section 202 of the Cr.P.C. and
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pass fresh orders in accordance with law. The appeals stand allowed
to the aforesaid extent.
.…………………………………….J.
[DIPAK MISRA]
……………………………………..J.
[SHIVA KIRTI SINGH]
New Delhi.
April 11, 2016.
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ITEM NO.1A COURT NO.4 SECTION IIB
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 247/2016
K.S.JOSEPH Appellant(s)
VERSUS
PHILIPS CARBON BLACK LTD.& ANR Respondent(s)
WITH
Crl.A. No. 248/2016
Date : 11/04/2016 These appeals were called on for judgment today
For Appellant(s) Mr. K. Radhakrishnan, Sr. Adv.
Mr. Navin Prakash, AOR
Ms. Meetu Singh, Adv.
For Respondent(s) Mr. E. M. S. Anam, AOR
Ms. Liz Mathew, AOR
Mr. M.F. Philip, Adv.
Hon'ble Mr. Justice Shiva Kirti singh pronounced the judgment
of the Bench consisting Hon'ble Mr. Justice Dipak Misra and His
Lordship.
The appeals stand allowed to the extent indicated in the
signed reportable judgment.
(Gulshan Kumar Arora) (H.S. Parasher)
Court Master Court Master
(Signed reportable judgment is placed on the file)