1. Heard learned counsel for the applicants, Sri Ashish Agarwal, learned counsel for the opposite party no.2 and the learned AGA and have been taken through the record.
2. The instant application has been filed by the applicants with a prayer to quash the order dated 26.9.2006 passed by the Judicial Magistrate First Varanasi as well as the entire proceeding of the Complaint Case No. 216 of 2006 (Ms Agarwal Computers v. M/s Super Computers under section 138 Negotiable Instrument Act pending in the court of Chief Judicial Magistrate Varanasi.
3. It is submitted by the learned counsel for the applicants that the applicants runs the business of computer and its appliances in the name and style of M/s Super Computer and Network in Mohalla Kadamtar Police Station City Kotwali District Mirzapur. The opposite party no.2 Mohan Lal Gupta is also running the business of P.C.S in the name of M/s Agarwal Computers. The applicants and the opposite party no.2 both having the common interest developed their good business rapport. The opposite party no.2 by adopting unfair and foul means got the blank cheque of the applicants and on the basis of which he is trying to blackmail the applicants while the applicants have never issued any cheque to the opposite party no.2 The statement of the complainant has been recorded but the same is not on record. On the basis of the affidavit of the opposite party no.2, the court below has proceeded with the matter to summon the applicants to face the trial under section 138 Negotiable Instrument Act. The applicants have neither issued any cheque to the opposite party no. 2 nor have been served with any notice with respect to dishonour of the cheque from the opposite party no.2. The complaint filed by the opposite party no.2 being sheer abuse of process of law deserves to be dismissed.
4. It is submitted by the learned counsel for the complainant that the order passed by the learned Magistrate does not suffer from any legal or procedural infirmity or perversity. The learned Magistrate has found sufficient materials showing the complicity of the applicants.
5. For the proper analysis of the case in hand, the order dated 17.1.2008 passed by another Bench of this court is reproduced here to below:-
"Heard learned counsel for the applicant, learned AGA and perused the record.
Argument of learned counsel for the applicant is that while passing the summoning order on a complaint under section 138 Negotiable Instrument Act, the Magistrate has relied upon the affidavits only and has not recorded statement of the complainant under section 200 or witnesses under section 202 Cr.P.C.A perusal of the i impugned order shows that the statement of the complainant and that of the witnesses were recorded by the court below. The applicants have filed copy of the order sheet in support of their submission that affidavits were filed but it is not clear from the record whether in addition to the affidavits, their statement was also recorded or not. There is discretion of recording of the statement in the order of Court. This Court will infer that the statements were recorded unless fact is proved otherwise.
In the circumstances of the case let a report be called for from Chief Judicial Magistrate Varanasi within two weeks whether in complaint case no. 216 (M/s Agarwal Computers v. M/s Super Computers under section 138 Negotiable Instrument Act Police Station Cantt. Varanasi, statements of the complainant and the witnesses under section 202 Cr.P.C. were recorded by the Court or whether the Court acted only on the affidavits filed by them.
Let this case be listed immediately after two weeks."
6. On the date of order dated 17.1.2008, proceedings of the court below has not been stayed. When this fact came to the notice of the opposite party no.2 he filed counter and submitted in view of the provisions laid down in section 145 Negotiable Instrument Act whereby the court below is competent to take evidence on affidavit as statement under section 200 Cr.P.C. The court below proceeded against the applicant on the basis of affidavit of the complainant and witnesses and documentary proof in support of the complaint case. The notice was duly served informing about the dishonour of cheque issued by the applicant. Disputed question of fact is subject matter of trial. At this stage, it is only to be seen whether cheque in question given by the applicant in respect of purchases and dishonoured by the bank or not. The applicant has the liability to pay due amount which has not been discharged by him with mala fide intention as the cheque was dishonoured on account of insufficiency of fund. The provisions relating to recording statement under section 200 Cr.P.C. are not applicable in a proceeding under section 138 N.I.Act.
The learned counsel for the respondent has relied upon the decision of this Court in M/s Ensemble Furniture Solutions Pvt. Ltd. & another v. State of U.P.and another decided on 22.12.2011 in Misc. Case No. 13916 of 2009. In the above case also the statement of complainant was not recorded under section 200 Cr.P.C. and the concerned court proceeded on the basis of the affidavit of the applicant. Relying upon the decision of the Apex Court in M/s Mandvi Cooperative Bank Ltd (Supra) this Court held that section 145 N.I.Act with its non obstinate clause makes it possible for the evidence of the complainant to be taken in the absence of the accused but the affidavit of the complainant may be read in evidence subject to all exception. Such evidence given in affidavit is admissible therefore, the court below in the present case has committed no illegality while entertaining the affidavit of the complainant and passed the impugned order.
7. Counter and rejoinder affidavits filed by the respective parties are on record. This Court is now proceeding to decide the case finally since the proceedings are held up before the court below even in the absence of interim order passed at the initial stage in the petition.
8. So far as the contention of the learned counsel for the applicant is that the court below has not proceeded as required under the Code of Procedure for recording the statement under section 200 Cr.P.C. therefore, the order passed by the court below is absolutely untenable and is liable to be set aside.
9. The Apex Court has dealt this question in Mandvi Cooperative Bank Ltd. v. Nimesh B.Thakore (2010) 3 SCC 83, wherein it has been held that the section 145 N.I.Act. begins with non-obstante clause which makes it possible that evidence of the complainant to be taken in the absence of the accused which is taken on affidavit of the complainant or any of his witness may be read in evidence "subject to all just exceptions" and therefore, on the basis of the complainant's affidavit, even if the statement has not been recorded, the court below has not committed any illegality in summoning the applicant to face trial by considering the affidavit of the complainant and other witnesses. Learned Magistrate has not only considered the affidavit and but also taken into account all the material documents prior to initiating proceedings and thereafter on the basis of which proceeded to pass the order under section 138 N.I.Act. These materials are sufficient to prove that cheques were issued by the applicant which was dishonoured by the bank thus bank's remark of insufficient fund on bank slip has made out prima facie offence under section 138 Negotiable Instrument Act. As cited by the learned counsel for the complainant this Court has also passed order in M/s Ensemble Furniture Solutions Pvt. Ltd. & another v. State of U.P. and another (Criminal Misc. Application No. 13916 of 2009) decided on 22.12.2001 involving similar controversy relying upon the dictum of Apex Court in re Mandvi (Supra) in paras 20,21,22 itself give rise to presumption of dishonour of cheque. Paras 20, 21 and 22 of the above noted case is being quoted here in under:-
20. I am not in agreement with the contention of the learned counsel for the applicants that the statement of the complainant was not recorded as provided under Section 200 of the Code of Criminal Procedure, and the court below has proceeded merely on the basis of the affidavit of the complainant that it was mandatory upon the court concerned to examine the complainant on filing the complaint under Section 138 N. I. Act, hence there was no compliance of the provision of the Code, therefore, the summoning order passed against the applicant suffers from procedural illegality, liable to be quashed. The catena of decision of the Apex Court has been cited in this regard, where the Apex Court has observed that the magistrate is not duty bound to examine upon oath the complainant and his witnesses while issuing process. From the perusal of Section 145 N. I. Act, it starts with non obstante clause which reads thus :-
"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."
21. Section 145 of the Act is having overriding effect on the provision of Code of Criminal Procedure providing procedure for the complainant's evidence at the stage of inquiry, trial and other proceedings, therefore, the evidence of complainant may be given on an affidavit not only during the course of trial but even prior to issue of process. In Rakesh Sharma v. State of Rajasthan, 2010, RAJW2, P.1847, the question whether evidence of the complainant may be given on affidavit at pre-summoning stage in a complaint for an offence under Section 138 N. I. Act was settled after considering various authorities in the context of the provision of law under Section 145(1) of N. I. Act. In this regard, paragraph nos.20, 21 and 22 are quoted below :-
20. In reference to the aforesaid para, judgment in case of Pankajbhai Nagjibhai Patel(supra) and also judgment in case of Radhey Shyam Garg(supra) as decided by the Delhi High Court and upheld by the Hon'ble Apex Court are required to be seen. Perusal of the aforesaid two judgments makes it clear that judgment in case of Prakash Chand(supra) cannot hold filed. For clarity, it is necessary to mention that Section 145 of the N. I. Act is enabling provision for the complainant as the word 'may' has been used for his evidence on affidavit. It is not mandatory that complainant has to give his evidence on affidavit only. However, when the complainant chooses to give his evidence on affidavit during the course of enquiry, trial and or other proceeding, it cannot be said that such evidence on affidavit can be allowed during the course of trial alone. It is a settled law that no word of statutory provision can be left out for the purpose of giving interpretation. The word 'enquiry' used under Section 145 gets no meaning if evidence by the complainant on affidavit is not allowed before issuance of process as per Section 204 of Cr.P.C. If the intention of the legislature would have been that evidence by the complainant on affidavit can be given during the course of trial alone, then there was no reason to insert words 'enquiry' and 'other proceeding' in Section 145 of N. I. Act. Thus, in view of the aforesaid also, the argument of learned counsel for petitioner cannot be accepted or if we accept the argument, then Section 142 of the N. I. Act cannot be accepted in the manner interpreted by the Hon'ble Apex Court in case of Pankajbhai Nagjibhai Patel (supra). The outcome of the discussion made above is that Section 145 of the N. I. Act is having overriding effect on the provisions of the Code of Criminal Procedure providing contrary procedure for the complainant's evidence at the stage of enquiry, trial and other proceeding. Sections 4 and 5 of the Cr.P.C. cannot be given narrow interpretation otherwise the very purpose and object of bringing amendment under Section 142 to 147 of the N. I. Act will frustrate as otherwise elaborately discussed by the Hon'ble Apex Court in case of M/s. Mandvi Co-op Bank Ltd.(supra).
21. In view of discussion made in reference of the provisions of the Negotiable Instruments Act as well as Code of Criminal Procedure, I am of the opinion that Sections 142 to 147 of the Negotiable Instruments Act have to be given effect and any provision contrary in the code of Criminal Procedure cannot have overriding effect. The effect of the provisions of Sections 142 to 146 of the N. I. Act have been dealt with by Delhi High Court as well as Hon'ble Apex Court in the cases of Radhey Shyam Garg and M/s. Mandvi Co-op Bank Ltd.(supra) wherein it has also been held that Sections 142 to 146 will attract to the trial in a complaint maintained pursuant to Section 190 of the code of Criminal Procedure and it departs from the procedure contrary given in the Code of Criminal Procedure.
22. In view of discussion made above, my composite answer to the two questions framed above is that evidence of complainant may be given on affidavit not only during the course of trial but even pre-summoning stage i.e., before issue of process pursuant to Section 204 of the Cr.P.C. In view of the aforesaid, provisions of Section 145 of the N. I. Act would be having overriding effect to the provisions contrary provided under the Code of Criminal Procedure. The issue having been answered in the aforesaid manner. Thus there remains no substance in the criminal miscellaneous petition challenging order dated 1.2.2010 and according same is dismissed.
10. The Hon'ble Apex Court in M/s. Mandvi Cooperative Limited case(supra) has held that Section 145 with its non obstante clause makes it possible for the evidence of the complainant to be taken in the absence of the accused. But the affidavit of the complainant may be read in evidence subject to all just exception so meaning thereby anything inadmissible in evidence would not be taken in as evidence, even though stated on affidavit. In the instant case the bank slip with the official remark showing that the cheque was dishonoured on account of insufficient fund itself give rise to the presumption of dishonour of cheque. In paragraph 25 of the aforesaid case the reason has been mentioned to take evidence on affidavit which is mentioned herein below :-
"25. It is not difficult to see that Sections 143 to 147 lay down a kind of special code for the trial of offences under Chapter VII of the Negotiable Instruments Act and Sections 143 to 147 were inserted in the Act by the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 to do away with all the stages and processes in a regular criminal trial that normally cause inordinate delay in its conclusion and to make the trial procedure expeditious as possible without in any way compromising on the right of the accused for a fair trial. Here we must take notice of the fact that cases under Section 138 of the Act have been coming in such great multitude that even the introduction of such radical measures to make the trial procedure simplified and speedy has been of little help and cases of dishonoured cheques continue to pile up giving rise to an unbearable burden on the criminal court system."
"22. Thus, under Section 145(2) of the Act all the evidence including substantive evidence may be given on affidavit with the sole object to a simpler and swifter trial procedure departing from the elaborate and time consuming trial procedure of the Code. Such evidence given on affidavit is admissible and therefore the court below has committed no error while entertaining the affidavit of the complainant and passed the impugned order against the applicants. The High Court of Assam in Tridib Dutta Choudhary(supra) case has also held that there is no infirmity in taking cognizance of the offence under Section 138 N. I. Act on the basis of the affidavit in evidence of the complainant. In A. V. R. Murthy case(supra), High Court of Andhra Pradesh has observed that receiving of sworn affidavits from the complainant instead of recording sworn statement by the Magistrate before taking cognizance of offence under the Act is permissible and is not in anyway contrary to the procedure prescribed by law. The High Court of Uttaranchal in case of Vinod Singh Negi's case(supra), dismissed the petition by holding that if the Magistrate takes the cognizance and proceeds under Section 200 and 202 Cr.P.C. it is an inquiry under the provisions of Cr.P.C. and the complainant is entitled to file the affidavits in support of his evidence."
11. So far as the service of notice is concerned, it can only be decided on the basis of evidence led by the parties and it is premature to raise such an objection by filing 482 petition. There are a catena of decisions of the Apex court that once it is stated that the notice was sent by registered post to the address of the drawer need not aver further and it is deemed to have been served. The court can presume the notice would have been delivered at the address of address
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ee and the addressee has knowledge of the notice unless the contrary is proved. "Deemed Service" enshrined under section 27 of the General Clauses Act would be attracted. It is specifically mentioned in the complaint that notice through registered post was sent on 20.12.2005 and on failure of the applicant to make payment within 15 days of the receipt of notice the complainant accrued right thereafter to file complaint within one month as provided under section 138 read with 142 N.I.Act. 12. It is not a case requiring interference in exercise of power under section 482 Cr.P.C. The proceedings cannot be termed as an abuse of the process of law. The intent of justice is also not attracted in the present case to warrant interference with the criminal proceedings as the case is not one of the rarest of rare cases. 13. From the perusal of the material on record and looking into the facts of the case at this stage it cannot be said that no offence is made out against the applicants. All the submission made at the bar relates to the disputed questions of fact which cannot be adjudicated upon by this Court at the preliminary stage. At this stage only a prima case is to be seen in the light of the law laid down by the Supreme Court in cases of R.P. Kapur v. State of Punjab AIR 1960 SC 866, and State of Haryana v. Bhajan Lal 1992 SCC (Cr.) 426, disputed defence of the accused cannot be considered at this stage. The applicant is free to raise all the defence before the court below. 14. In the light of prolix and verbose discussion, this Court does not see any justifiable ground to quash the order 26.9.2006 in complaint case no. 216 of 2006 under section 138 N.I. Act. The application has no merit and is accordingly dismissed. The court below is directed to proceed with the case in utmost expedition uninfluenced by any observation made by this Court. Application dismissed.