Case Note & Summary
The petitioner, Sri B G Uday, filed a criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973, challenging the judgment dated 11.09.2023 passed by the LXXXI Additional City Civil Judge and Sessions Judge (Special Court exclusively to deal with criminal cases related to elected MPs/MLAs in the State of Karnataka) in Crl.A.No.1303/2023, which confirmed the order of conviction dated 13.10.2022 passed by the XLII A.C.M.M, Bengaluru (Special Court for triable of cases filed against MP/MLAs) in C.C.No.30758/2021. The petitioner was convicted under Section 138 of the Negotiable Instruments Act, 1881 for dishonour of a cheque. The respondent, Sri H G Prashanth, was the complainant. The core issue was whether the conviction could be sustained when the complainant was not examined under Section 200 CrPC. The High Court held that the examination of the complainant under Section 200 CrPC is mandatory in a complaint case, and its omission vitiates the proceedings. The court noted that the trial court and the appellate court failed to follow this mandatory procedure, rendering the conviction unsustainable. Consequently, the revision petition was allowed, the conviction was set aside, and the petitioner was acquitted. The court emphasized that the non-examination of the complainant deprived the accused of the opportunity to cross-examine and rebut the presumption under Section 139 of the NI Act.
Headnote
A) Criminal Procedure Code - Complaint - Examination of Complainant - Section 200 CrPC - Mandatory requirement - The court held that the examination of the complainant under Section 200 CrPC is mandatory in a complaint case, and failure to do so vitiates the proceedings. The conviction based on such a complaint is unsustainable. (Paras 3-5) B) Negotiable Instruments Act - Dishonour of Cheque - Presumption under Section 139 - Rebuttal - Section 138 NI Act - The court observed that the presumption under Section 139 NI Act is rebuttable, but the complainant must first establish the basic requirements under Section 138. Non-examination of complainant prevents the accused from cross-examining and rebutting the presumption. (Paras 4-6) C) Criminal Procedure Code - Revisional Jurisdiction - Section 397 CrPC - Scope - The court exercised revisional jurisdiction to set aside the conviction as the trial court and appellate court failed to follow mandatory procedure under Section 200 CrPC. (Paras 1, 7)
Issue of Consideration
Whether the conviction under Section 138 of the Negotiable Instruments Act, 1881 can be sustained when the complainant was not examined under Section 200 of the Code of Criminal Procedure, 1973?
Final Decision
The revision petition is allowed. The judgment dated 11.09.2023 passed by the LXXXI Additional City Civil Judge and Sessions Judge in Crl.A.No.1303/2023 and the order of conviction dated 13.10.2022 passed by the XLII A.C.M.M, Bengaluru in C.C.No.30758/2021 are set aside. The petitioner is acquitted of the offence under Section 138 of the Negotiable Instruments Act, 1881.
Law Points
- Section 200 CrPC mandatory for complaint cases
- Section 138 NI Act presumption rebuttable
- revisional jurisdiction under Section 397 CrPC
- non-examination of complainant fatal
