Percy Fernandes Vs. Smt. Anita Patrao - Court Judgment

Excerpt:
negotiable instruments act, 1881 - section 138 read with section 200 cr.p.c. - complaint under - affidavit filed by the complainant has been accepted by the court, instead of examining the complainant on oath - whether proceedings under section 200 cr.p.c. get vitiated - held - court has to ascertain whether there is any prima-facie case is made out against the accused and it is immaterial whether examination of the complainant is made on oath or not and as such omission to examine the 'complainant' on oath is not fatal to the complaints filed under section 138 of the act - affidavit filed by the complainant has been received by the court instead of examining him on oath, there has been substantial compliance of section 200 cr.p.c. - hence, the proceedings are not vitiated and the same cannot be interfered under section 482 cr.p.c. affidavit evidence given by the complainant under section 145 of the n.i. act, could be read as evidence in such enquiry provided under section 200 of cr.p.c. ;rejecting the petitions, the court, ;no doubt, by the use of the word 'shall' it appears that language used in section 200 of cr.p.c. is mandatory in nature. but, at the same time, it cannot be forgotten that it is a procedural law and has to be read in the context under which it is used. ; it may be noted that section 200 of cr.p.c. itself provides that examination of complainant on oath by magistrate is not necessary when the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties or by a court. ; the object of enquiry envisaged under section 200 of cr.p.c. is to verify the truth or falsehood of the averments made in the complaint and to findout whether there is prima facie material or evidence in support of the complaint to issue process against an accused and nothing more than that, and that object is fulfilled by the documents filed with such complaints for offence under section j38 of n.i. act. so, examination or non-examination of the complainant and his witnesses, if any on oath has no such effect on the enquiry in complaints filed for offence under section 138 of n.i. act. ; examination of complainant and witnesses, if any, on oath by magistrate envisaged under section 200 of cr.p.c. is necessary in the enquiry only to ascertain the truth or falsehood of averment made in the complaint. so, an affidavit evidence given by complainant under section 145 of n.i. act could be read as evidence in such enquiry provided under section 200 of criminal procedure code. ; when affidavit permitted under section 145 of n.i.act is filed by complainant and no prejudice is shown to have been caused to petitioner-accused due to the omission in not examining the respondent-complainant on oath, proceedings need not be quashed under section 482 of cr.p.c. (as not necessary either to prevent abuse of process of court or for ends of justice or to give effect to an order passed under the code of criminal procedure. - re-valuation:[p.d. dinakaran, c.j. & v.g. sabhahit,j] prayer of appellant in writ petition to conduct revaluation of petitioners answer script for fifth semester examination - single judge dismissed writ petition petitioner had secured 31 marks in first revaluation and in second revaluation 30 marks -made application for 3rd revaluation - no provision for 3rd revaluation by an independent authority held, since there is no provision for third re-valuation by an independent authority, the said request of the petitioner was rejected and having regard to the said material facts, it is clear that the single judge has rightly dismissed the writ petition as there is no provisions for third revaluation by an independent authority and the impugned order passed by the single judge is justified and does not suffer from any error or illegality as to call for interference in this intra court appeal. - , ilr1997kar2091 :7. historically, it is necessary to point out that under the old code of criminal procedure, the formal verification process was non-existent and the complaint was presented to the learned magistrate and effectively, it was on the basis of the submissions made in the court room for which there was no record, that the process was issued. when it was recast, incorporated the requirement that the magistrate shall examine the complainant and witnesses himself and record the substance of such examination which would be proof of the fact that such a procedure had been followed and if satisfied from the material produced before the court that a prima facie case has been made out, should only then issue process. ' 10. since the word 'shall' is used before the words 'examined upon oath the complainant, it was argued for the petitioner/accused that the language used in the said provision is mandatory in nature and strong reliance has been placed on a division bench decision of kerala high court in the case of n. so also, when sworn statement was found not signed by the complainant in the case of jayarama reddy (supra), this court has held it as bad in law and quashed the process issued, however, issue relating to receiving affidavit in place of sworn statement i. , could have in any way been of benefit to the petitioner, and the omission to examine the complainant must at the worst be regarded as an irregularity which is to be disregarded by virtue of the provisions of section 537(a), criminal p. - 15. thus it is seen that where the sworn statement of the complainant is not recorded by the magistrate then it is only the complainant who will be prejudiced if his complaint is dismissed and that if however the magistrate issues process and the trial goes on the accused cannot complain of any prejudice to him and the irregularity in the non-examination of the complaint would be an irregularity which would be cured under present section 465, cr. state of pepsu, 1959crilj1124 ,the supreme court held that when a complaint is made by a court, it is not necessary for a magistrate to examine the complainant and that neither section 200 nor section 202 requires a preliminary enquiry before the magistrate can assume jurisdiction to issue process against the person complained against. of course, same does not hold good in case of complaints filed for other offences.orders.b. majage, j.1. in view of similarity in the facts and as same point is involved between the same parties, these two petitions are taken together for consideration.2. the respondent-complainant filed a complaint before the learned magistrate against the petitioner-accused for an offence punishable under section 138 of n. i. act. the learned magistrate did not examine the complainant on oath, but received the affidavit of the complainant as sworn statement, when filed by the complainant and, considering the material on record and finding that a prima facie case has been made out by the complainant to issue process against the accused for the offence alleged, ordered to issue process against the accused. so, challenging the same, the petitioner-accused is before this court.3. when the respondent-complainant appeared before the court after notice, with consent of both sides, taken the matter for final hearing and heard both sides.4. it was vehemently argued for the petitioner-accused that in view of section 200 of cr.p.c., which is mandatory in nature, the learned magistrate could not have received the affidavit of the respondent-complainant instead of examining the complainant on oath and hence, the proceedings require to be quashed.on the other hand, the learned counsel for the respondent complainant submitted that in view of section 145 of the n.i.act, there is no bar to receive affidavit evidence now instead of examining the complainant on oath under section 200 of cr.p.c. and, at any rate, the procedure adopted by the learned magistrate has not prejudiced the petitioner-accused in any way and consequently, the proceedings cannot be quashed. perused the records carefully.5. the only point for consideration is:'whether proceedings get vitiated when received affidavit instead of examining the complainant' on oath by the learned magistrate?'6. according to section 200 of cr.p.c., a magistrate taking cognizance of an offence on the complaint shall examine upon oath the complainant and the witnesses, if any. the object of such examination of the complainant on oath is, to test whether the allegations in the complaint make out a prima facie case and there is sufficient ground or material or evidence in support of the complaint to enable the magistrate to issue process. in other words, such examination of the complainant on oath by magistrate is necessary to ascertain prima facie the truth or falsehood of the complaint and to satisfy himself as to the veracity of the complainant and as to any points on which the complainant is silent 'or on which there may be doubt. such a procedure to examine the complainant on oath was found necessary to provide an in built mechanism against court being misled and would also ensure a due scrutiny of the complaint prior to issuing of process.7. in this connection, it would be useful to note following observations made by a division bench of this court in the case of naganagouda veeranagouda patil & anr. v. malatesh h. kulkarni & ors., : ilr1997kar2091 :'7. historically, it is necessary to point out that under the old code of criminal procedure, the formal verification process was non-existent and the complaint was presented to the learned magistrate and effectively, it was on the basis of the submissions made in the court room for which there was no record, that the process was issued. the law commission in its recommendations had pointed out that in a large number of cases though the complaint confined itself to the facts and the submissions, that statements used to be made in the court room which went far beyond whatever was stated in the complaint only for purposes of snatching the order of process and, at a later point of time it was realised that the court had been misled. the recommendation to parliament was therefore that some inbuilt mechanism be provided for which would ensure a due scrutiny prior to the issue of process and that this procedure should take care of the all important aspect of guarding against the court being misled. it is for this purpose that section 200 cr.p.c. when it was recast, incorporated the requirement that the magistrate shall examine the complainant and witnesses himself and record the substance of such examination which would be proof of the fact that such a procedure had been followed and if satisfied from the material produced before the court that a prima facie case has been made out, should only then issue process..'8. there is no dispute that when a person, other than public servant or court, files complaint, enquiry envisaged under section 200 of cr.p.c. i.e., examination of complainant and witnesses, if any, on oath is necessary for ascertaining the truth or falsehood of the complaint and also for ascertaining whether there is any evidence in support of the complaint so as to justify the issue of process, as held by the supreme court in the case of vadilal panchal v. dattatreya, air 1960 sc 113 and also in the case of nirmaljit v. state of west bengal, : [1973]2scr66 . the dispute is, whether such examination of complainant on oath as envisaged under section 200 of cr. p. c. is mandatory or not.9. so, it will be useful to refer section 200 of cr.p.c.'200. 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: provided that, when the complaint is made in writing, the magistrate need not examine the complainant and the witnesses- (a) if a pubic servant acting or purporting to act in the discharge of his official duties or a court has made the complaint; or(b) if the magistrate makes over the case for inquiry or trial to another magistrate under section 192: provided further that if the magistrate makes over the case to another magistrate under section 192 after examining the complainant and the witnesses, the later magistrate need not re-examine them.' 10. since the word 'shall' is used before the words 'examined upon oath the complainant, it was argued for the petitioner/accused that the language used in the said provision is mandatory in nature and strong reliance has been placed on a division bench decision of kerala high court in the case of n. harihara iyer v. state of kerala, 2000 crl.l.j. 1251 division bench decision of this court in the case of naganagouda (supra), another decision of this court in the case of k.p. jayarama reddy & ors. v. g. parameswarappa, 1981(1) klj 564 and also on a decision of the supreme court in the case of sashi jena & ors. v. khadal swain & anr., : 2004crilj1394 . on the other hand, the learned counsel for the respondent-complainant submitted that in view of the provision contained in section 145 of n.i.act, affidavit could substitute sworn statement.11. it is true, in the case of naganagouda (supra), this court has held that permitting an advocate to conduct examination-in- chief of the complainant and his witnesses at the time of recording their sworn statements was not proper. so also, when sworn statement was found not signed by the complainant in the case of jayarama reddy (supra), this court has held it as bad in law and quashed the process issued, however, issue relating to receiving affidavit in place of sworn statement i.e., non-examination of complainant on oath by learned magistrate was not involved in any of the said decisions nor in the case of sashi jena (supra) decided by the supreme court though, of course, in the case of harihara iyer (supra), kerala high court has held that prior examination of the complainant on oath is a must in complaints filed for offence under section 138 of n.i.act 12. no doubt, by the use of word 'shall', it appears that language used in section 200 of cr.p.c. is mandatory in nature. but, at the same time, it cannot be forgotten that it is a procedural law and has to be read in the context under which it is used.13. in the case of ramjas marwari v. purulia municipality, air 1936 patna 145, high court of patna has observed as under:'.....the complainant ought to have been examined under section 200, criminal p.c., before process issued; but it is difficult to see how the formal examination of the complainant under section 200, criminal p.c., could have in any way been of benefit to the petitioner, and the omission to examine the complainant must at the worst be regarded as an irregularity which is to be disregarded by virtue of the provisions of section 537(a), criminal p.c.'14. after considering said decision and various other decisions of various high courts, in the case of durvasa & ors. v. chandrakala, 1995(4) klj 263 this court has observed as under:-'15. thus it is seen that where the sworn statement of the complainant is not recorded by the magistrate then it is only the complainant who will be prejudiced if his complaint is dismissed and that if however the magistrate issues process and the trial goes on the accused cannot complain of any prejudice to him and the irregularity in the non-examination of the complaint would be an irregularity which would be cured under present section 465, cr. p.c. thus a non- examination or improper examination of the complainant cannot be made a ground to set aside the order of the magistrate issuing process at the instance of the accused persons.' (underline emphasized)said decision has been later followed by this court in the case of mallappa sangappa desai vs. laxmanappa basappa whoti, 1995 crl.l.j. 715 and held that non-compliance of the procedure does not vitiate the issue of process.15. that apart, in the case of naganagouda (supra) relied on for the petitioner-accused also, the division bench of this court, which had occasion to consider the decision in the case of durvasa & ors.(supra), has observed as under:'8. the next submission that was canvassed before us was that as far as the present petitions are concerned, since the verification has not been done by the court but on the other hand, has been in the form of an elaborate examination-in-chief at the instance of the complainant's learned advocate, that the order issuing process will have to be quashed and that the complaint would have to be dismissed. we have had occasion in this regard to point out that in one of the decisions, this view has not been followed and we have also had occasion to record that not every breach of procedure would result in rendering the proceeding void ab initio or for that matter would have the effect of categorizing as an illegality. section 465 cr.p.c. specifically makes provision for situations in which the breach is curable and in our considered view, the breach in question is most certainly rectifiable. if on facts and in law the complainant has made out a prima facie case merely because of an error that has taken place at the verification stage, it would not justify this court quashing the entire proceeding.'so, the view taken by this court in the case of durvasa (supra) could be said to have been approved by the division bench.16. of course, in the case of n. harihara iyer (supra), a division bench of kerala high court has held as under:'19 ..........therefore, it is incumbent on the magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complainant. the object is to test whether the allegations make out a prima facie case to enable him to issue process. we are, therefore, unable to countenance the argument advanced by mr. sahasranaman on the scope and application of section 200 cr.p.c. likewise, the argument advanced by mr. sahasranaman with regard to section 142 of the n.i.act has no basis.....'but, it is pertinent to note that, said bench has not considered the effect of non-compliance of the said procedure by magistrate. further, said view is against the consistent view taken by this court in the decisions referred to already and the division bench did not consider the said decisions of this court. keeping this in mind, the said judgment of kerala high court has to be considered.17. that apart, though in the case of harihara iyer (supra), section 200 of cr. p. c. has been considered along with section 142 of n.i.act, it is important to note that at the time when that decision was rendered, section 145 of the n.i.act was not in the statute book.18. at this stage, it may be noted that section 200 of cr. p.c. itself provides that examination of complainant on oath by magistrate is not necessary when the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties or by a court.19. in ranjit singh v. state of pepsu, : 1959crilj1124 , the supreme court held that when a complaint is made by a court, it is not necessary for a magistrate to examine the complainant and that neither section 200 nor section 202 requires a preliminary enquiry before the magistrate can assume jurisdiction to issue process against the person complained against.20. this is because whenever a public servant files a complaint acting or purporting to act in the discharge of duties, there will be an inbuilt procedural safeguard provided for avoiding complaints, which have no ground or material to proceed and as such, a public servant cannot file a complaint without following certain procedure and, at any rate, without any prima facie, material showing that accused has committed offence or offences alleged. normally, in such complaints filed by public servants, there will be documents. so also in case of complaints by court. in this connection, reference can be had to sections 195 and 196 of cr. p.c. relating to the complaints by public servants or by court.21. similarly, complaints for offence under section 138 of n. i. act are based on documentary evidence namely, cheque issued, bank endorsement of dishonour of cheque, notice given in writing by complainant and record, if any, about service of such notice besides reply, if any, given by the accused and not on any oral statement of complainant. as such, if any of the said documents is not forthcoming, there will not be a prima facie case or material to proceed further and the complaint itself will not be maintainable. in other words, it is only on the basis of documents referred to above filed with complaint, when a prima facie case is made out, process could be issued, otherwise not, ie., process cannot be issued only on the basis of sworn statement of the complainant and his witnesses, if any, recorded by the magistrate.22. as noted already, the object of enquiry envisaged under section 200 of cr.p.c. is to verify the truth or falsehood of the averments made in the complaint and to find out whether there is prima facie material or evidence in support of the complaint to issue process against an accused and nothing more than that. and that object is fulfilled by the documents filed with such complaints for offence under section 138 of n.i. act. so examination or non-examination of the complainant and his witnesses, if any, on oath has no such effect on the enquiry in complaints filed for offence under section 138 of n.i.act.23. now reference can be had to section 145 of n.i. act brought in the statute book by act no.55 of 2002 w.e.f. 6.2.2003:'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.'here itself it will be useful to note following objects and reasons with which section 145 of the n.i.act has been introduced in the act:'the existing provisions in the negotiable instruments act namely, sections 138 to 142 in chapter xvii have been found deficient in dealing with dishonour of cheques. not only the punishment provided in the act has proved to be inadequate, the procedure prescribed in the courts to deal with such matters has been found to be cumbersome. the courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the act.'24. at this stage, reference can also be had to sections 4(2) and 5 of cr.p.c.:'section 4(2) all offences under other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences,''section 5. saving. - nothing contained in this code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.'25. in view of the said provisions and the opening words of section 145 of n.i.act, section 145 will have overriding effect on the provisions contained in cr.p.c. so, notwithstanding anything contained in the code of criminal procedure, evidence of complainant could be given by him on affidavit and it could be read in evidence in any enquiry, trial or other proceeding under the code of criminal procedure, but subject to all exceptions.26. as noted already, examination of complainant and witnesses, if any, on oath by magistrate envisaged under section 200 of cr.p.c. is necessary in the enquiry only to ascertain the truth or falsehood of averment made in the complaint. so, an affidavit evidence given by complainant under section 145 of n.i.act could be read as evidence in such enquiry provided under section 200 of code of criminal procedure.27. even otherwise, this court has taken consistent view that non-examination of complainant is not fatal, as noted already. at the most, it could be an irregurity, which could be disregarded in view of the provisions contained in sections 461 and 465 of cr. p.c., more so, when not shown as to how such omission has caused any prejudice to the petitioner-accused.28. further, it may be noted that, admittedly, chapter xv of cr.p.c. deals with the procedure when a private complaint is filed before court. so, while interpreting or considering provisions relating to procedural law, it would be proper to bear in mind the following observations made by the supreme court in the case of state of punjab v. shamlal murari, : [1976]2scr82 , reiterated by the supreme court recently in the case of rosy & anr. v. state of kerala and ors., ilr 2000 kar 2117:'we must always remember that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. it has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. where the non-compliance, the procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. but, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. after all, court are to do justice, not to wreck this end product on technicalities. viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time.'29. so, when affidavit permitted under section 145 of n.i.act is filed by complainant and no prejudice is shown to have been caused to petitioner-accused due to the omission in not examining the respondent-complainant on oath, proceedings need not be quashed under section 482 of cr.p.c.(as not necessary either to prevent abuse of process of court or for ends of justice or to give effect to an order passed under the code of criminal procedure).30. that apart, in the case of k.m. maregowda v. m/s. seven hills ex-import corporation, crl.p.no.392/2004 decided today/26.7.2004 this court held that in complaints filed for offence under section 138 of n.i.act, non-examination of complainant upon oath by magistrate, is not at all fatal so as to invoke section 482 of cr.p.c, particularly when sections 461, 462 and 465 of cr.p.c. are borne in mind, which show that any procedural irregularity in such an enquiry does not vitiate the proceedings. so, the decision of the kerala high court in the case of harihara iyer (supra), strongly relied on for the petitioner-accused does not come to his aid.31. further, recording sworn statement of complainant and witnesses, if any, under section 200 of cr.p.c. is a step subsequent to taking cognizance of offence by magistrate. in cases for offence under section 138 of n.i.act, based on documents referred to already, cognizance of offence is taken when requirements of section 142 of the n.i.act are fulfilled. so, the irregularity or defect, if any; in the stage subsequent to the stage of taking cognizance of offence, cannot vitiate the cognizance taken.32. it could be argued for the petitioner-accused that when irregularity is found in not examining the complainant on oath, the matter requires to be remitted to magistrate. but, as noted already, based on documents, cognizance has been taken for the offence and truth or falsehood of the allegations in the complaint could be verified i.e., whether there is prima facie case against the accused could be ascertained and as such, it is immaterial whether examination of complainant is made on oath or not and as such, remitting the matter to magistrate is not necessary since omission to examine the complainant on oath is not fatal in such complaints filed under section 138 of the n.i.act. of course, same does not hold good in case of complaints filed for other offences.33. at any rate, as affidavit filed by the complainant has been received or accepted by the court instead of examining the complainant on oath, to my mind, there has been substantial compliance of section 200 of cr.p.c. so, considered from any angle, the proceedings are not vitiated requiring this court to invoke section 482 of cr. p. c.in the result, the petitions are rejected.

Judgment:
ORDER

S.B. Majage, J.

1. In view of similarity in the facts and as same point is involved between the same parties, these two petitions are taken together for consideration.

2. The respondent-complainant filed a complaint before the learned Magistrate against the petitioner-accused for an offence punishable under Section 138 of N. I. Act. The learned Magistrate did not examine the complainant on oath, but received the affidavit of the complainant as sworn statement, when filed by the complainant and, considering the material on record and finding that a prima facie case has been made out by the complainant to issue process against the accused for the offence alleged, ordered to issue process against the accused. So, challenging the same, the petitioner-accused is before this Court.

3. When the respondent-complainant appeared before the Court after notice, with consent of both sides, taken the matter for final hearing and heard both sides.

4. It was vehemently argued for the petitioner-accused that in view of Section 200 of Cr.P.C., which is mandatory in nature, the learned Magistrate could not have received the affidavit of the respondent-complainant instead of examining the complainant on oath and hence, the proceedings require to be quashed.

On the other hand, the learned Counsel for the respondent complainant submitted that in view of Section 145 of the N.I.Act, there is no bar to receive affidavit evidence now instead of examining the complainant on oath under Section 200 of Cr.P.C. and, at any rate, the procedure adopted by the learned Magistrate has not prejudiced the petitioner-accused in any way and consequently, the proceedings cannot be quashed. Perused the records carefully.

5. The only point for consideration is:

'Whether proceedings get vitiated when received affidavit instead of examining the complainant' on oath by the learned Magistrate?'

6. According to Section 200 of Cr.P.C., a Magistrate taking cognizance of an offence on the complaint shall examine upon oath the complainant and the witnesses, if any. The object of such examination of the complainant on oath is, to test whether the allegations in the complaint make out a prima facie case and there is sufficient ground or material or evidence in support of the complaint to enable the Magistrate to issue process. In other words, such examination of the complainant on oath by Magistrate is necessary to ascertain prima facie the truth or falsehood of the complaint and to satisfy himself as to the veracity of the complainant and as to any points on which the complainant is silent 'or on which there may be doubt. Such a procedure to examine the complainant on oath was found necessary to provide an in built mechanism against Court being misled and would also ensure a due scrutiny of the complaint prior to issuing of process.

7. In this connection, it would be useful to note following observations made by a Division Bench of this Court in the case of NAGANAGOUDA VEERANAGOUDA PATIL & ANR. v. MALATESH H. KULKARNI & ORS., : ILR1997KAR2091 :

'7. Historically, it is necessary to point out that under the old Code of Criminal Procedure, the formal verification process was non-existent and the complaint was presented to the learned Magistrate and effectively, it was on the basis of the submissions made in the Court room for which there was no record, that the process was issued. The Law Commission in its recommendations had pointed out that in a large number of cases though the complaint confined itself to the facts and the submissions, that statements used to be made in the Court room which went far beyond whatever was stated in the complaint only for purposes of snatching the order of process and, at a later point of time it was realised that the Court had been misled. The recommendation to Parliament was therefore that some inbuilt mechanism be provided for which would ensure a due scrutiny prior to the issue of process and that this procedure should take care of the all important aspect of guarding against the Court being misled. It is for this purpose that Section 200 Cr.P.C. when it was recast, incorporated the requirement that the Magistrate shall examine the complainant and witnesses himself and record the substance of such examination which would be proof of the fact that such a procedure had been followed and if satisfied from the material produced before the Court that a prima facie case has been made out, should only then issue process..'

8. There is no dispute that when a person, other than public servant or Court, files complaint, enquiry envisaged under Section 200 of Cr.P.C. i.e., examination of complainant and witnesses, if any, on oath is necessary for ascertaining the truth or falsehood of the complaint and also for ascertaining whether there is any evidence in support of the complaint so as to justify the issue of process, as held by the Supreme Court in the case of VADILAL PANCHAL v. DATTATREYA, AIR 1960 SC 113 and also in the case of NIRMALJIT v. STATE OF WEST BENGAL, : [1973]2SCR66 . The dispute is, whether such examination of complainant on oath as envisaged under Section 200 of Cr. P. C. is mandatory or not.

9. So, it will be useful to refer Section 200 of Cr.P.C.

'200. 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:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses-

(a) if a pubic servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192:

Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the later Magistrate need not re-examine them.'

10. Since the word 'shall' is used before the words 'examined upon oath the complainant, it was argued for the petitioner/accused that the language used in the said provision is mandatory in nature and strong reliance has been placed on a Division Bench decision of Kerala High Court in the case of N. HARIHARA IYER v. STATE OF KERALA, 2000 Crl.L.J. 1251 Division Bench decision of this Court in the case of NAGANAGOUDA (supra), another decision of this Court in the case of K.P. JAYARAMA REDDY & ORS. v. G. PARAMESWARAPPA, 1981(1) KLJ 564 and also on a decision of the Supreme Court in the case of SASHI JENA & ORS. v. KHADAL SWAIN & ANR., : 2004CriLJ1394 . On the other hand, the learned Counsel for the respondent-complainant submitted that in view of the provision contained in Section 145 of N.I.Act, affidavit could substitute sworn statement.

11. It is true, in the case of Naganagouda (supra), this Court has held that permitting an Advocate to conduct examination-in- chief of the complainant and his witnesses at the time of recording their sworn statements was not proper. So also, when sworn statement was found not signed by the complainant in the case of Jayarama Reddy (supra), this Court has held it as bad in law and quashed the process issued, However, issue relating to receiving affidavit in place of sworn statement i.e., non-examination of complainant on oath by learned Magistrate was not involved in any of the said decisions nor in the case of Sashi Jena (supra) decided by the Supreme Court though, of course, in the case of Harihara Iyer (supra), Kerala High Court has held that prior examination of the complainant on oath is a must in complaints filed for offence under Section 138 of N.I.Act

12. No doubt, by the use of word 'shall', it appears that language used in Section 200 of Cr.P.C. is mandatory in nature. But, at the same time, it cannot be forgotten that it is a procedural law and has to be read in the context under which it is used.

13. In the case of RAMJAS MARWARI v. PURULIA MUNICIPALITY, AIR 1936 PATNA 145, High Court of Patna has observed as under:

'.....The complainant ought to have been examined under Section 200, Criminal P.C., before process issued; but it is difficult to see how the formal examination of the complainant under Section 200, Criminal P.C., could have in any way been of benefit to the petitioner, and the omission to examine the complainant must at the worst be regarded as an irregularity which is to be disregarded by virtue of the provisions of Section 537(a), Criminal P.C.'

14. After considering said decision and various other decisions of various High Courts, in the case of DURVASA & ORS. v. CHANDRAKALA, 1995(4) KLJ 263 this Court has observed as under:-

'15. Thus it is seen that where the sworn statement of the complainant is not recorded by the Magistrate then it is only the complainant who will be prejudiced if his complaint is dismissed and that if however the Magistrate issues process and the trial goes on the accused cannot complain of any prejudice to him and the irregularity in the non-examination of the complaint would be an irregularity which would be cured under present Section 465, Cr. P.C. Thus a non- examination or improper examination of the complainant cannot be made a ground to set aside the order of the Magistrate issuing process at the instance of the accused persons.' (underline emphasized)

Said decision has been later followed by this Court in the case of MALLAPPA SANGAPPA DESAI vs. LAXMANAPPA BASAPPA WHOTI, 1995 Crl.L.J. 715 and held that non-compliance of the procedure does not vitiate the issue of process.

15. That apart, in the case of Naganagouda (supra) relied on for the petitioner-accused also, the Division Bench of this Court, which had occasion to consider the decision in the case of Durvasa & ORS.(supra), has observed as under:

'8. The next submission that was canvassed before us was that as far as the present petitions are concerned, since the verification has not been done by the Court but on the other hand, has been in the form of an elaborate examination-in-chief at the instance of the complainant's learned Advocate, that the order issuing process will have to be quashed and that the complaint would have to be dismissed. We have had occasion in this regard to point out that in one of the decisions, this view has not been followed and we have also had occasion to record that not every breach of procedure would result in rendering the proceeding void ab initio or for that matter would have the effect of categorizing as an illegality. Section 465 Cr.P.C. specifically makes provision for situations in which the breach is curable and in our considered view, the breach in question is most certainly rectifiable. If on facts and in law the complainant has made out a prima facie case merely because of an error that has taken place at the verification stage, it would not justify this Court quashing the entire proceeding.'

So, the view taken by this Court in the case of Durvasa (supra) could be said to have been approved by the Division Bench.

16. Of course, in the case of N. Harihara Iyer (supra), a Division Bench of Kerala High Court has held as under:

'19 ..........Therefore, it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complainant. The object is to test whether the allegations make out a prima facie case to enable him to issue process. We are, therefore, unable to countenance the argument advanced by Mr. Sahasranaman on the scope and application of Section 200 Cr.P.C. Likewise, the argument advanced by Mr. Sahasranaman with regard to Section 142 of the N.I.Act has no basis.....'

But, it is pertinent to note that, said Bench has not considered the effect of non-compliance of the said procedure by Magistrate. Further, said view is against the consistent view taken by this Court in the decisions referred to already and the Division Bench did not consider the said decisions of this Court. Keeping this in mind, the said judgment of Kerala High Court has to be considered.

17. That apart, though in the case of Harihara Iyer (supra), Section 200 of Cr. P. C. has been considered along with Section 142 of N.I.Act, it is important to note that at the time when that decision was rendered, Section 145 of the N.I.Act was not in the statute book.

18. At this stage, it may be noted that Section 200 of Cr. P.C. itself provides that examination of complainant on oath by Magistrate is not necessary when the complaint is made in writing by a public servant acting or purporting to act in the discharge of his official duties or by a Court.

19. In RANJIT SINGH v. STATE OF PEPSU, : 1959CriLJ1124 , the Supreme Court held that when a complaint is made by a Court, it is not necessary for a Magistrate to examine the complainant and that neither Section 200 nor Section 202 requires a preliminary enquiry before the Magistrate can assume jurisdiction to issue process against the person complained against.

20. This is because whenever a public servant files a complaint acting or purporting to act in the discharge of duties, there will be an inbuilt procedural safeguard provided for avoiding complaints, which have no ground or material to proceed and as such, a public servant cannot file a complaint without following certain procedure and, at any rate, without any prima facie, material showing that accused has committed offence or offences alleged. Normally, in such complaints filed by public servants, there will be documents. So also in case of complaints by Court. In this connection, reference can be had to Sections 195 and 196 of Cr. P.C. relating to the complaints by public servants or by Court.

21. Similarly, complaints for offence under Section 138 of N. I. Act are based on documentary evidence namely, cheque issued, Bank endorsement of dishonour of cheque, notice given in writing by complainant and record, if any, about service of such notice besides reply, if any, given by the accused and not on any oral statement of complainant. As such, if any of the said documents is not forthcoming, there will not be a prima facie case or material to proceed further and the complaint itself will not be maintainable. In other words, it is only on the basis of documents referred to above filed with complaint, when a prima facie case is made out, process could be issued, otherwise not, ie., process cannot be issued only on the basis of sworn statement of the complainant and his witnesses, if any, recorded by the Magistrate.

22. As noted already, the object of enquiry envisaged under Section 200 of Cr.P.C. is to verify the truth or falsehood of the averments made in the complaint and to find out whether there is prima facie material or evidence in support of the complaint to issue Process against an accused and nothing more than that. And that object is fulfilled by the documents filed with such complaints for offence under Section 138 of N.I. Act. So examination or non-examination of the complainant and his witnesses, if any, on oath has no such effect on the enquiry in complaints filed for offence under Section 138 of N.I.Act.

23. Now reference can be had to Section 145 of N.I. Act brought in the statute book by Act No.55 of 2002 w.e.f. 6.2.2003:

'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.'

Here itself it will be useful to note following objects and reasons with which Section 145 of the N.I.Act has been introduced in the Act:

'The existing provisions in the Negotiable Instruments Act namely, Sections 138 to 142 in Chapter XVII have been found deficient in dealing with dishonour of cheques. Not only the punishment provided in the Act has proved to be inadequate, the procedure prescribed in the Courts to deal with such matters has been found to be cumbersome. The Courts are unable to dispose of such cases expeditiously in a time bound manner in view of the procedure contained in the Act.'

24. At this stage, reference can also be had to Sections 4(2) and 5 of Cr.P.C.:

'Section 4(2) All offences under other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences,'

'Section 5. Saving. - Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.'

25. In view of the said provisions and the opening words of Section 145 of N.I.Act, Section 145 will have overriding effect on the provisions contained in Cr.P.C. So, notwithstanding anything contained in the Code of Criminal Procedure, evidence of complainant could be given by him on affidavit and it could be read in evidence in any enquiry, trial or other proceeding under the Code of Criminal Procedure, but subject to all exceptions.

26. As noted already, examination of complainant and witnesses, if any, on oath by Magistrate envisaged under Section 200 of Cr.P.C. is necessary in the enquiry only to ascertain the truth or falsehood of averment made in the complaint. So, an affidavit evidence given by complainant under Section 145 of N.I.Act could be read as evidence in such enquiry provided under Section 200 of Code of Criminal Procedure.

27. Even otherwise, this Court has taken consistent view that non-examination of complainant is not fatal, as noted already. At the most, it could be an irregurity, which could be disregarded in view of the provisions contained in Sections 461 and 465 of Cr. P.C., more so, when not shown as to how such omission has caused any prejudice to the petitioner-accused.

28. Further, it may be noted that, admittedly, Chapter XV of Cr.P.C. deals with the procedure when a private complaint is filed before Court. So, while interpreting or considering provisions relating to procedural law, it would be proper to bear in mind the following observations made by the Supreme Court in the case of STATE OF PUNJAB v. SHAMLAL MURARI, : [1976]2SCR82 , reiterated by the Supreme Court recently in the case of ROSY & ANR. v. STATE OF KERALA AND ORS., ILR 2000 KAR 2117:

'We must always remember that procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice. Where the non-compliance, the procedural, will thwart fair hearing or prejudice doing of justice to parties, the rule is mandatory. But, grammar apart, if the breach can be corrected without injury to a just disposal of the case, we should not enthrone a regulatory requirement into a dominant desideratum. After all, Court are to do justice, not to wreck this end product on technicalities. Viewed in this perspective, even what is regarded as mandatory traditionally may, perhaps, have to be moderated into wholesome directions to be complied with in time or in extended time.'

29. So, when affidavit permitted under Section 145 of N.I.Act is filed by complainant and no prejudice is shown to have been caused to petitioner-accused due to the omission in not examining the respondent-complainant on oath, proceedings need not be quashed under Section 482 of Cr.P.C.(as not necessary either to prevent abuse of process of Court or for ends of justice or to give effect to an order passed under the Code of Criminal Procedure).

30. That apart, in the case of K.M. MAREGOWDA v. M/S. SEVEN HILLS EX-IMPORT CORPORATION, CRL.P.No.392/2004 decided today/26.7.2004 this Court held that in complaints filed for offence under Section 138 of N.I.Act, non-examination of complainant upon oath by Magistrate, is not at all fatal so as to invoke Section 482 of Cr.P.C, particularly when Sections 461, 462 and 465 of Cr.P.C. are borne in mind, which show that any procedural irregularity in such an enquiry does not vitiate the proceedings. So, the decision of the Kerala High Court in the case of Harihara Iyer (supra), strongly relied on for the petitioner-accused does not come to his aid.

31. Further, recording sworn statement of complainant and witnesses, if any, under Section 200 of Cr.P.C. is a step subsequent to taking cognizance of offence by Magistrate. In cases for offence under Section 138 of N.I.Act, based on documents referred to already, cognizance of offence is taken when requirements of Section 142 of the N.I.Act are fulfilled. So, the irregularity or defect, if any; in the stage subsequent to the stage of taking cognizance of offence, cannot vitiate the cognizance taken.

32. It could be argued for the petitioner-accused that when irregularity is found in not examining the complainant on oath, the matter requires to be remitted to Magistrate. But, as noted already, based on documents, cognizance has been taken for the offence and truth or falsehood of the allegations in the complaint could be verified i.e., whether there is prima facie case against the accused could be ascertained and as such, it is immaterial whether examination of complainant is made on oath or not and as such, remitting the matter to Magistrate is not necessary since omission to examine the complainant on oath is not fatal in such complaints filed under Section 138 of the N.I.Act. Of course, same does not hold good in case of complaints filed for other offences.

33. At any rate, as affidavit filed by the complainant has been received or accepted by the Court instead of examining the complainant on oath, to my mind, there has been substantial compliance of Section 200 of Cr.P.C. So, considered from any angle, the proceedings are not vitiated requiring this Court to invoke Section 482 of Cr. P. C.

In the result, the petitions are rejected.