Case Note & Summary
The present application was filed by the original accused, Rajabhau Shankar Nagare, challenging the order dated 01.08.2018 passed by the learned Judicial Magistrate First Class, Akkalkuwa, District Nandurbar, in R.C.C. No. 117 of 2013, whereby his application for discharge (Ex.50) was rejected. The background of the case is that the respondent no.2, Amsha Fulji Padvi, filed a complaint under Section 138 of the Negotiable Instruments Act, 1881 against the applicant alleging dishonour of a cheque. The applicant filed an application for discharge primarily on the ground that the complaint was not signed by the complainant and the verification was defective. The learned Magistrate rejected the discharge application, holding that the defect in verification is curable and the complaint can be proceeded with. Aggrieved by this order, the applicant approached the High Court. The legal issue considered was whether the complaint under Section 138 of the Negotiable Instruments Act is liable to be dismissed or the accused discharged on the ground that the complaint was not signed by the complainant and the verification was defective. The applicant argued that the complaint is not maintainable as it was not signed by the complainant and the verification was not proper, relying on the provisions of Sections 200 and 202 of the Code of Criminal Procedure, 1973. The respondent State opposed the application, submitting that the defect is curable and the Magistrate rightly rejected the discharge application. The court analyzed the provisions of Section 200 CrPC, which requires the complaint to be signed by the complainant, and Section 145 of the Negotiable Instruments Act, which allows the complainant to give evidence on affidavit. The court held that the defect in verification is not fatal and can be cured at a later stage by allowing the complainant to sign and verify the complaint afresh. The court observed that the complaint was filed by the complainant through his advocate, and the Magistrate had taken cognizance. The court further held that the accused has no right to be discharged on such technical grounds at the initial stage. The court dismissed the criminal application, upholding the order of the Magistrate rejecting the discharge application.
Headnote
A) Criminal Procedure Code - Complaint - Defect in Verification - Section 200, 202 CrPC - Defect in verification of complaint is not fatal and can be cured at a later stage - The court held that the complaint was filed by the complainant through his advocate, and the defect in signature and verification can be cured by allowing the complainant to sign and verify the complaint afresh - Held that the Magistrate was justified in rejecting the discharge application (Paras 6-10). B) Negotiable Instruments Act - Dishonour of Cheque - Complaint - Section 138, 145 - The complainant's failure to sign the complaint and defective verification does not warrant discharge of accused at the initial stage - The court relied on the principle that procedural defects can be cured, and the accused has no right to be discharged on such technical grounds - Held that the application for discharge was rightly rejected (Paras 6-10).
Issue of Consideration
Whether the complaint under Section 138 of the Negotiable Instruments Act, 1881 is liable to be dismissed or the accused discharged on the ground that the complaint was not signed by the complainant and the verification was defective?
Final Decision
The High Court dismissed the criminal application, upholding the order of the Judicial Magistrate First Class, Akkalkuwa, rejecting the discharge application. The court held that the defect in verification is curable and the complaint can proceed.
Law Points
- Discharge application
- Complaint verification
- Defect curable
- Section 138 Negotiable Instruments Act
- 1881
- Section 145 Negotiable Instruments Act
- Section 200 CrPC
- Section 202 CrPC
