IN THE HON'BLE HIGH COURT OF CH^ATTISGARH AT BILASPUR (C.G.) Cr.M.P. N0. \ ^ S / 2010 APPLICANTS RESPONDENTS o \\'u,.r^> ^: \'e ^v s> v 1. National Highways Authority of India, PIU Na.rsinghpur, Doctor's Colony, Civil Lines, Narsinghpur, Madhya Pradesh, through the Project Director, PIU Narsinghpuri(r/i-f<. 2. Shri S.P. Sharma, Project Director, National Highways Authority of India, PIU Narsinghpur, Doctor's Colony, Civil Lines, Narsinghpur, Madhya Pradesh 3. Shri A. B. Srivastava, National Highways Authority of India, PIU Narsinghpur, Doctor's Colony, Civil Lines, Narsinghpur, Madhya Pradesh ^ VERSUS :a RESPONDENTS APPLICANTS .^^A^ E?.{» '.,. -- -^ 'srs,v. pk^ 2. Ramesh Kumar Syryawanshi son of Shri Ram Das Suryawanshi, age not known to the applicants Smt. Varkha Suryawanshi, wife of Shri Ramesh Kumar Suryawanshi, age not known to the applicants Both residents of House No. t/22- 23, Sector 02, Avanti Vihar, Telibandha, Raipur, Chhattisgarh APPLICATION UNDER SECTION 482 OF THE CQDE OF CRIIVIINAJ- PROCEDURE CODE^OR QUASTlMENT OF THE PROCEEDINGS BEARING ^ASE N0. 1386/2b09 PENDING BEFORE THE JUDIClAL WIAGISTRATE FIRST CLASS, RAIPUR, CHHATTISGARH, AND FOR ISSUANCE OF APPROPRIATE ORDER/ORDERS AND DIRECTION/DIRECTIQNS HiGH COURT OF CHHATTiSGARH : BiLASPUR Single Bench: Hon'ble Shri Manindra Mohan Shrivastava,_j, PETITIONERS RESPONDENTS Cr.M.P. No.195/2010 National Highways Authority of India anci others. Versus Ramesh Kumar Suryawanshi and anofher PETiTiON UNDER SECTION 482 OF THE CODE OF CRiMINAL PROCEDURE Present: - Shri Amrito Das, counsel for the petitioners. Shri Saurabh Sharma, counsel for the respondents. ORAL ORDER (Passed on 30'" of November; 2011) This petition under Section 482 of the Code of Criminai Procedure, 1973 (hereinaner referred to as 'CrPC') has been filed by the petitioner aggrieved by order dated 4/4/09 passed by the .Judicia! Mag'strate, 1 Ciass, Raipur in case No. 1386/09 by which, cognizance of the offence under Negotiabie Instruments Act, 1881 (ror short 'the Act or 1881!) has been taken against the petitioners. 2. The respondents fited a compiaint in the Court of Judicial Magistrate, 1a Ctess, Raipur alleging commission of offence under Sectlon 138 of the Act of 1881 against the petitioners. in the complaint, it has been averred ihat the petitioners had issued cheques towards discharge of his iiabiiity in ihe matter of payment of arrears of rent of the premises owned by the respondents, but when the cheques were presented, the same were ~~~~^H *f '•r.i-l ^f' ^^3^-' '" '"'%SE:£a^t returned as dishonoured with the endorsement or "stop payment". It is further averred that a demand notice was given but as the payment was not made within the time stipulated, complaint has been fiied. Afier taking into consideration the contents of the compiaint, the iearned Magistrate took cognizance of the offence and issued process, against which, instant petition has been riled by the peiitioners. 3. Though several grounds have been raised to assail the order passed by the learned Magistrate, during the course of submission, iearned counsel for the petitioners confines submission to the sole issue with regsird to non-examination of the compiainant on oath before taking cognizance and issuing process. The submission of iearned counsel for the petitioners is that the complainants were neither examined nor their submissions were recorded prior to taking cognizance of the offence and issuance of notice to the petitioners. In support of his submission, learned counsel for the petitioners reiied upon the order dated 19/10/2011 passed in CrMP No.128/10 (Raj Kumar Singhania v. Ashok Jain) and connecfed matters and submits that non-examination of complainant on oath render proceedings iitegal and also vitiates the order and proceedings taking cognizance. He submits that in the case of National Smaii Industries Corporation Limited v. State (NCT of Deiliil and others, 2009 (11SCC 407 also, the Supreme Court has reiterated the view taken by it in earlier cases, referred to in the case i.e. CrMP No.128/10. r<^ i? /y 4. On the other hand, learned counsei for the respondents submits that in the case of AmarjitSingh v. JasiitSincih,2011 (2»CGLR49 decided on 20/4/2011, it has been heid that the provisions with regard to examination of complainant on oath have been heid to be directory and not mandatory. He submits that the aforesaid decision has been rendered, reiying upon the decision in the case of Damodar S. Prabhu v. Sayed Babaial H.. 2010 Cri.L.J. 2860. Learned counsel for the respondents submitted that the provisions contained in the Negotiable Instrumenis Act providespecial procedure with regard to taking cognizance and conduct of triai in the matter of commisslon of orfence under Section 138 of the Act of 1881. He further submits that the provisions contained in Section 142 to 146 of the Negotiabie Instruments Act have overriding effecf and wili therefore prevaii over the provisions contalned in the CrPC, which is a generai iaw. 5. The effect of non-examination of the complainant on oath before taking cognizance in a case of commission of orfence under Section 138 of the Act of 1881 was considered by this Court in the case of Raj Kumar Singhania (Supra) and connected matters. After taking into consideratlon the staiutory scheme engrafted in Section 200 of the CrPC and considering the effect and impact of speciai provisions contained in Section 142 to 145 ofthe Negotiabie Instruments Aci and its interface, this Court, reiying upon the judgment of the Supreme Court in ihe case of Nirmaijit Singh Hoon v. State of W.B., 1973 (3) SCC 753,Adalat ^ Prasad v. Roopial Jindal and others, 2004 (71 SCC, 338 and Sabitha Ramamurthy & anr. y. R.B.S. Channabasavaradhya. AiR Supreme Court 3086 as aiso many other decisions, came to ihe conclusion that the Magistrate, whiie entertaining compiaint under Section 200 of the CrPC, taking cognizance upon a complaint, is mandaiorily required to examine on oath, the compfainant and his witnesses, present if any, and further that the aforesaid requirements cannot be dispensed with even in cases where the complaint reiates to commission of offence under Section 138 of the Neaotiabie instruments Aci. in the case of Nationai Small industries (supra), the Supreme Court while examining the statutory scheme under Section 200 of CrPC in the matter of complaint alleging commission of orfence under Section 138 of the Act of 1881 has also held that the mandatory requirements of Section 200 CrPC is that a Magistrate taking cognizance of an offence on a complaint, shail examine upon oath the complainanf and that the substance of such examination, reduced to writing, shal! be signed by the compiainant. Reiiance on the decision in the case of Amarjit Singh (Supra) is misplaced for the reason that the issue whether examination of compiainant on oath is necessary ber'ore taking cognizance in the matter of compiaint under Section 1 38 of ihe Act, was neither raised nor decided. That was a case where order taklng cognizance was challenged on the ground that as the accused resides outside the territorial jurisdictlon of the iViagistrate, provisions under Section 202 CrPC required enquiry or invesiigation to be made before taking cognizance. The provisions contained in the Act including the effect '(b^) or non-obstante ciause in various provisions or the Negotiable Instruments Act were considered in the background of the aforesaid issue which had cropped up for consideration before the Court. The aforesaid declsion therefore, does not lay down the proposition of iaw that in view of the speciai provisions contained in the Negotlable instruments Act, examination of complainant on oath is not mandatory. Otherwise aiso, in view of the decision of the Supreme Court in the case of National Smal Industries (Supra), it is now quite settled that the requirements of examination of complainant on oath even in cases of complaint alteging commission of offence under Section 138 of the Negotiable Instruments Act is mandatory. Though, tearned counsel for the respondent made an attempt to distinguish the aforesaid decision of the Supreme Court by submitting that the aforesaid decision was rendered in different perspective and back ground, i am not inciined to accept the same because the Supreme Court considered the requirement of Seciion 200 of CrPC keeping in view the provisions contained in the Negotiable instruments Act as wouid be clear from the findings recorded in paragraph 12 to paragraph 16ofthedecision. Deepii 6. in the result, it has to be held that the order taking eognizance is iilegat and unsustainable in iaw and is thererore, set aside. The petition is accordingly ailowed. The Magistrate shall aiways be at iiberty to proceed in accordance with law. ——-—^7,— Manindra Mohan Shrivastava Judge