K.S. JOSEPHversusPHILIPS CARBON BLACK LTD. & ANR.

                            [2016] 2 S.C.R. 914



A                              K.S. JOSEPH
                                     v.
               PHILIPS CARBON BLACK LTD. & ANR.
                     (Criminal Appeal No.24 7 of2016)
B                             APRIL 11, 2016
           [DIPAK MISRA AND SHIVA KIRTI SINGH, JJ.]
          Negotiable Instruments Act, 1881 - s. 138 - Code of Criminal
  Procedure, 1973 - ss. 145, 200, 202 - Complaint uls. 138 against
  the appellant - Appellant sought quashing of order of cognizance
c and issuance of swiunons -Appellant's case that there was delay of
  62163 days in filing the complaint and summons were issued without
  applying the mind to the issue of delay; that cognizance could not
  have been taken without examining.the complainant 011 solemn
  affirmation; and that the appellant being an accused and a resident
D of an area outside the territorial jurisdiction of the Magistrate who
  has issued summons, the enquiry uls. 202 Cr.P.C. was not done -
  Rejection by High Court - On appeal, held: Non-obstante clause
  in sub-section (1) of s. 145 is self-explanatory and over-rules the
  requirement of examination ofthe complainant on solemn affirmation
E uls. 200 Cr.P.C. - Complainant 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 Cr.P.C.,
  thus, plea based on s. 200 untenable - Court can take cognizance
  even after the prescribed period but only if the complainant satisfies
F the   court that he had sufficient cause for not making complaint
  within the prescribed period - Magistrate did not apply mind either
  to the issue of delay or lo the requirement of s.202 Cr.P.C. - As
  such, the correctness of submission based upon s. 202 Cr.P.C. and
  as to whether such requirement ofenquiry or investigation is attracted
  even to a case under the Act, is left open - However, on the wound
G
  of non-application of mind to the issue of delay and since the High
   Court passed a summmy order, the order of the High Court and the
   Magistrate, set aside - Magistrate to re-consider the issue of delay,
   its condonation, as well as requiremelll of enquiry u!s. 202 Cr.PC.

H
                                    914
       K.S. JOSEPH v. PHILIPS CARBON BLACK LTD.                             915


     Mandavi Cooperative Bank Ltd. v. Nimesh B. Thakore                      A
     2010 (1) SCR 219:(2010) 3 SCC 83 - relied on.
      P.K. Choudhury v. Commander, 48 BRTF (GREF) 2008
      (4) SCR 976:(2008) 13 SCC 229; Vijay Dhanuka v.
      Najima Mamtaj 2014 (4) SCR 171:(2014) 14 SCC 638
      - referred to.                                                         B
                        Case Law Reference
      2010 (l) SCR 219           relied on       Para 4
      2008 (4) SCR 976           referred to      Para 8
      2014 (4) SCR 171           referred to      Para 9                     c
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
247 of2016.
                                WITH
      Criminal Appeal No. 248 of2016                                         D
     From the Judgment and Order dated 04.09.2012 of the High Court
ofKerala at Ernakulam in Crl. M. C. No. 2902 of2012.
      K. Radhakrishnan, Sr. Adv., Navin Prakash, Adv., with him for
the Appellant.
                                                                             E
     E. M. S. Anam, Ms. Liz Mathew, M. F. Philip, Advs., for the
Respondents.
      The Judgment of the Court was delivered by
        SHIVA KIRTl SINGH, J. I. By the common impugned order
dated 04.09.2012 passed in Crl.M.C. Nos.2902 and 2903 of2012 by the          F
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
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the effect that submissions were not impressive and ifthe appellant has
any 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
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916            SUPREME COURT REPORTS                          [2016] 2 S.C.R.



A  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
 B at the present stage but he has raised three other legal grounds. Firstly,
   the complaint suffered from delay of62/63 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
 c 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 ofan 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
 D
    in law.
             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
 E
      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
 F          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."
 G           4. The 11011 obstante clause in sub-section (I) 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
 H    enquiry, trial or other proceeding under the Cr.P.C. This view is also
         K.S. JOSEPH v. PHILIPS CARBON BLACK LTD.                             917
                    [SHIVA KIRT! SINGH, J.]

supported by the judgment of this Court in the case of Mandavi                 A
Cooperative Bank Ltd. v. Nimesh B. Thakore'. No doubt this
judgment was in a different factual scenario but this Court went into
details of the amendment of2002 including Section 145 and in paragraph
18 it also noted the Statement of Objects and Reasons appended to the
Amendment Bill. /11/er alia, the objects included "to prescribe procedure      B·
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               c
relevant provision under Section 142 of the Act requires making of the
comrlaint 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               D
appellant had sent a reply denying his liability through a reply dated
20.02.2006. The complaint was filed on 24.05.2006. Primafacie, 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 only if the complainant satisfies the court that he
                                                                               E
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
comp)ainant was represented. Since proper steps were not taken
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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
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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 of2005, effective from 23.06.2006. The relevant part of Section 202
is reproduced herein below:
 1
     r2010J 3 sec 83                                                           H
918             SUPREME COURT REPORTS                           (2016] 2 S.C.R.



A           "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
 B          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:
 C          Provided ......................... "
                                                           (Emphasis supplied)
          7. The amendment has a purpose in requiring the concerned
   Magistrate to postpone the issue of process against the accused ifhe is
   residing at a place beyond the area of his jurisdiction and to hold an
 D 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. 1t 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
 E 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. Commander,
      48 BRTF (GREF) 2 to support his submission that for condoning delay
      in filing complaint beyond the perio~ oflimitation, natural justice warrants
 F    notice to the accused so as to grant him an opportunity to show that the
      delay should not be condoned.
         9. Learned senior counsel forthe appellant has also placed reliance
   upon a judgment of this Court in the case ofVijay Dhanuka v. Najima
   Mamtaj' to support his submission based upon requirement of Section
 G 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
      2
        (2008) 13 sec 229
 H    '(2014) 14 sec 638
         K.S. JOSEPH v. PHILIPS CARBON BLACK LTD.                             919
                    [SHIVA K!RTI SINGH, J.]

  have already noted earlier that the Order Sheet does not disclose any        A
  application of mind either to the issue of delay or to the requirement of
  Section 202, Cr.P.C. Since the orderofthe 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                 B
  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
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  impugned order of the High Court as well as the order of cognizance
  summoning the accused passed bythe.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
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  Cr.P.C. and pass fresh orders in accordance with law. The appeals stand
  allowed to the aforesaid extent.
 Nidhi Jain                                                Appeals allowed.