1. This criminal revision petition is arising out of a proceeding under Negotiable Instruments Act, 1881. The respondent herein filed a complaint in the court of learned Chief Judicial Magistrate, Kamrup at Guwahati on 16.12.09 for trial of the accused under Section 138 of the N.I. Act. The complaint was registered as C.R. Case No. 4607 of 2009 and in due course the case was transferred to the court of SDJM II, Kamrup, Guwahati. The complaint petition was accompanied with evidence in the form of an affidavit and relevant documents. On the basis of the averments made in the complaint petition and affidavit evidence, cognizance was taken and process against the accused was issued vide order dated 16.12.2009.
2. After appearance in the court, the accused prayed for review of the order dated 16.12.09 on the ground that the affidavit of the complainant cannot be considered as initial deposition as contemplated under Section 200 of the Code of Criminal Procedure. The objection of the accused was over ruled vide order dated 13.12.10. Hence, the accused has preferred this revision petition challenging both the orders dated 16.12.09 and 13.12.10.
3. Heard Mr. BN Sarma, learned counsel for the petitioner and Mr. SK Ghosh, learned counsel appearing for the sole respondent.
4. Mr. Sarma has submitted that the examination of the complainant is mandatory under Section 200 Cr.P.C. and an affidavit evidence of the complainant cannot be considered as sufficient for compliance of Section 200 Cr.P.C. In support of his submission, learned counsel has relied upon the judgments of this court rendered in the case of Abdul Kadir Choudhury -Vs- The State of Assam & Another; (1989) 2 GLR 53; L. Luisei, DF. O/C Phek -Vs- Vehkozo Chizo & Anr; (1987) 1 GLR 326; Sandip Roy Choudhury -Vs- Nupur Saha; 2005 (2) GLT 226 and the judgment of Hon'ble Supreme Court rendered in the case of Damodar S. Prabhu -Vs- Sayed Babalal H; (2010) 5 SCC 663.
5. On the other hand, Mr. Ghose, learned counsel for the respondent submitted that Section 145, inter-alia, was introduced in the N.I. Act vide Act 55 of 2002 which empowers a court to accept evidence in the form of affidavit. Learned counsel also relied upon the judgment of this court rendered in Ranvijay Kumar Gupta, alias Pappu -Vs- Anand Kishore Madhesia; reported in 2010 (1) GLT 533 to buttress his argument that the affidavit evidence in a proceeding under N.I. Act is admissible. In this case this court had also tacitly accepted the affidavit evidence filed by the complainant at the initial stage. It is true that in the said judgment the issue, as to whether complainant's evidence by way of affidavit can be accepted or not within the meaning of Section 200 Cr.P.C., was not decided. However, the court did not find any infirmity in accepting the said evidence even at the time of taking cognizance of the offence. In this regard, Mr. Sarma, learned counsel for the petitioner submitted that the affidavit evidence can be accepted only during trial and not at the stage of taking cognizance. In other words, the learned counsel for the petitioner re-iterated that the personal examination of the complainant is sine-qua-non for taking cognizance of the complaint.
6. Mr. Ghose, learned counsel for the respondent also raised a preliminary objection about the maintainability of the revision petition on the ground that the order dated 13.12.10 is a preliminary order and as such no revision petition is maintainable under Section 397(2) Cr.P.C.
7. Apparently, order dated 16.12.09 is the primary order, taking cognizance of the complaint and 13.12.10 is the order rejecting the objection of the accused on the legality in taking cognizance of the complaint. As noted earlier, the petitioner has challenged both the orders. Besides this, the order dated 13.12.10 cannot be said to an interlocutory order inasmuch as the learned SDJM(S) has taken a final decision that there was no infirmity in taking cognizance of the complaint on the basis of the affidavit evidence. Hence, the objection of the respondent about the maintenance of the revision petition is hereby rejected.
8. In the case of Sandip Roy Choudhury (Supra), this court has held that examination of the complainant on oath is mandatory under Section 200 Cr.P.C. to prevent filing of false and frivolous complaints. However, the question involved in this revision petition is whether the provisions of Section 145 of the N.I. Act will prevail over Section 200 Cr.P.C. Other judgments cited by the learned counsel for the petitioner are not on the point.
9. With regard to the acceptance of affidavit evidence to decide the complaint N.I. Act, it is necessary to reproduce Section 145 of the N.I. Act, which 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."
10. It is seen that Section 145 has been introduced in the N. I. Act to prescribe a special procedure, dispensing with preliminary evidence of the complainant, as could be gathered from the statement of the objects of the Bill. Besides this, the submission of learned counsel for the petitioner that affidavit evidence can be accepted only during trial and not during enquiry cannot be accepted in view of the language employed in Section 145. In other words, I am of the view that courts should liberally accept affidavit evidence, subject to exception incorporated in Sub Section (2), to advance the intention of the legislature.
11. The implication of Section 145 of the N.I. Act in the trial of a complaint under section 138 of the said Act also came up for scrutiny before the Apex Court in the case of Mandvi Cooperative Bank Limited -Vs- Nimesh B. Thakore; reported in (2010) 3 SCC 83. In this case also their Lordships have re-iterated that Sections 143 to 147 have been brought in the law with the sole objective of speedy disposal of the complaints. Their Lordships have observed that Sections 143 to 147 were designed specially to lay down a much simplified procedure for the trial of dihonoured cheque cases so that such case can be decided expeditiously, even swifter than a summary trial. Their Lordship also observed that a complainant, who gives his evidence on affidavit, cannot be asked to give oral deposition in examination-in- chief all over again, as it would amount to duplication of the evidence and contrary to the intention of the legislature.
12. The Apex Court also declined to accept the proposition that Section 145 is akin to Section 296(2) of the Code of Criminal Procedure. The observations of the Apex Court needs to be reproduced, which are as below :
" 29. Moreover, the crucial difference between Section 296(2) of the Code and Section 145 (2) of the Act is that the former deals with the evidence of a formal nature whereas under the latter provision, all evidences including substantive evidence may be given on affidavit. Section 296 is part of the elaborate procedure of a regular trial under the Code while the whole object of Section 145(2) of the Act is to design a much simpler and swifter trial procedure departing from elaborate and time-consuming trial procedure of the Code. Hence, notwithstanding the apparent verbal similarity between Section 145(2) of the Act and Section 296(2) of the Code, it would be completely wrong to interpret the true scope and meaning of the one in the light of the other. Neither the legislative history of Section 296(2) nor any decision on that section can persuade us to hold that under Section 145 (2) of the Act, on being summoned at the instance of the accused the complainant or any of his witnesses should be first made to depose in examination-in-chief before cross-examination."
13. The judgment of the Apex Court rendered in the case of Damodar Prabhu (Supra) is also not an authority under Section 145 of the N.I. Act. In the said judgment, the Apex Court was primarily concerned with compounding of an offence of cheque dishonour under Section 147. Their Lordships have observed that under Section 320 Cr.P.C. except few offences under the Panel Code, no other offences are compoundable. However, the Apex Court has held that in view of the non obstante clause, employed in Section 147 of the N.I. Act, the limitations prescribed under Section 320 Cr.P.C. would not be applicable. The legal principle laid down by the Apex Court is reproduced below :
" 12. Section 147 of the Negotiable Instruments Act, 1881 is in the nature of an enabling provision which provides for the compounding of offences prescribed under the same Act, thereby serving as an exception to the general rule incorporated in sub- section (9) of Section 320 CrPC which states that "no offence shall be compounded except as provided by this section". A bare reading of this provision would lead us to the inference that offences punishable under laws other than the Penal Code also cannot be compounded. However, since Section 147 was inserted by way of an amendment to a special law, the same will override the effect of Section 320 (9) CrPC, especially keeping in mind that Section 147 carries a non obstante clause".
14. A bare perusal of Section 145 read with the observations made by the Hon'ble Supreme Court in the case of Mandvi Cooperative Bank Limited(Supra) and Damodar Prabhu (Supra) clearly indicates that this provision shall prevail over the procedure laid down under the Code of Criminal Procedure, since Section 145 begins with non obstante clause. It is the settled position of law that if a particular procedure is laid down in a special law that will prevail over the general procedure. Even if there is conflict in the procedure prescribed in a special law from the general law, the procedure laid down in the special law would prevail. The submission of Mr. Sarma, learned counsel for the petitioner that a complainant can give his chief evidence in the form of an affidavit only during trial stage and not at the initial stage has to be thoroughly rejected in the light of the objectives of the amendments of the Act and the observations of the Apex Court. In my considered opinion, if this proposition is accepted and the scope of Section 145 is insulated with artificial limitations it would frustrate the very purpose for which Section 145 has been introduced in law. Hence, I have no hesitation to hold that affidavit evidence can be accepted by the court at any stage of the trial, including at the time of taking cognizance of the complaint. However, if the court thinks fit it may direct the complainant to give his oral evidence and may be cross-examined orally. I would like to add here that the trial court should not insist oral examination in chief of the complainant mechanically and as a matter of course and this discretion should be exercised judiciously and reasons should be assigned therefore.
15. In the present case, cognizance has been taken under Section 138 of the N.I. Act, which is a special law and Section 145, inter-alia, was introduced in the year 2002. Hence, the procedure laid down under Section 145 of N.I. Act has to be followed in preference to Section 200 Cr.P.C. for taking cognizance of a complaint.
16. For the reasons alluded hereinabove, I hold that there is no infirmity in taking cognizance of the offence under Section 138 of the N.I. Act on the basis of the affidavit evidence of the complainant.
17. Consequently, the revision petition stands dismissed at the admission stage. The stay order dated 17.3.2011 stands vacated.
18. Both the parties are directed to appear in the trial court on 1.6.2011 and receive further directions.