Case Note & Summary
The dispute arose from a complaint filed by the petitioner, M/s Digesh Industries through its proprietor, against the respondent, proprietor of Adorn Marketing, under Section 138 of the Negotiable Instruments Act, 1881 before the 16th Joint Civil Judge Senior Division and Additional Chief Judicial Magistrate, Nagpur in Summary Criminal Case No.7131 of 2017. The complaint remained pending for several years primarily because the complainant did not appear for verification. On 21.12.2022 the trial court kept the matter for dismissal, and on 12.09.2023 dismissed the complaint for want of prosecution, observing that it had been pending for six years without steps being taken. Aggrieved, the petitioner challenged that order in Criminal Revision Application No.330 of 2023 before the Additional Sessions Judge, Nagpur; the revisional court dismissed the revision on 16.12.2024, holding that the complainant had remained absent on several dates despite court directions. The petitioner then filed Criminal Writ Petition No.375 of 2026 before the High Court of Judicature at Bombay, Nagpur Bench. The core legal issue was whether a Magistrate is mandatorily required to examine the complainant on oath before issuing process in a complaint under Section 138 of the Negotiable Instruments Act, 1881, and whether dismissal for want of prosecution solely on account of non-appearance for verification was sustainable. The petitioner contended that under Section 200 of the Code of Criminal Procedure, 1973 read with Sections 138, 142 and 145 of the Negotiable Instruments Act, 1881, the Magistrate has discretion to issue process on the basis of the complaint, documents, and affidavit, and that personal verification is not mandatory. The petitioner relied on A.C. Narayanan v. State of Maharashtra and another, (2014) 11 SCC 790, particularly paragraph 29, and offered to deposit Rs 50,000 as costs and to remain present on all future dates to demonstrate bona fides. The respondent opposed the petition, arguing that the complainant had failed to take steps for six years, had lost interest in prosecuting the complaint, and that both courts had sound reasons based on repeated absence recorded in the Roznama. The High Court examined the impugned orders and the Supreme Court's observations in A.C. Narayanan. It noted that the Magistrate's order did not record any satisfaction or reasons for calling upon the complainant to remain present for examination. The court reiterated that a conjoint reading of Sections 138, 142 and 145 of the Negotiable Instruments Act, 1881 and Section 200 of the Code of Criminal Procedure, 1973 makes it clear that the Magistrate is not bound to call the complainant for oral examination; the process could be issued even in the absence of the complainant relying upon the affidavit filed in support of the complaint. The High Court held that the Magistrate and the Revisional Court committed a material irregularity by treating verification as a mandatory step. Considering the complainant's voluntary offer to deposit Rs 50,000 as costs, it found that one more opportunity should be granted. Accordingly, the High Court allowed the writ petition, quashed and set aside both the order dated 12.09.2023 and the revisional judgment dated 16.12.2024, subject to the petitioner depositing Rs 50,000 before the trial court within three weeks. The amount, if deposited, was directed to be paid to the respondent through his counsel. The complaint was remitted to the learned Judicial Magistrate for fresh decision on merits regarding issuance of process, without being influenced by the High Court's observations. Rule was made absolute with no order as to costs.
Headnote
A) Criminal Procedure - Complaint Under Section 138 Negotiable Instruments Act, 1881 - Verification of Complainant Not Mandatory Before Issuing Process - Negotiable Instruments Act, 1881, Sections 138, 142, 145; Code of Criminal Procedure, 1973, Section 200 - The Magistrate dismissed a cheque dishonour complaint for want of prosecution on the ground that the complainant remained absent for verification. The High Court held that a conjoint reading of Sections 138, 142 and 145 of the N.I. Act and Section 200 of the Code makes it clear that the Magistrate has discretion whether to examine the complainant on oath; process can be issued on the basis of the complaint, documents, and affidavit. Held that absence of the complainant for verification alone was not a valid ground to dismiss the complaint when verification was not mandatory (Paras 10-12). B) Writ Jurisdiction - Supervisory Jurisdiction Under Article 227 of Constitution of India - Restoration of Complaint Subject to Costs - Constitution of India, Article 227 - The petitioner's conduct showed bona fides by voluntarily offering to deposit Rs 50,000 as costs and to remain present on all dates. The impugned orders passed by the Magistrate and Revisional Court were quashed and set aside subject to deposit of Rs 50,000 within three weeks, with the amount to be paid to the respondent and the complaint to be heard on merits without being influenced by observations from the present petition. Held that supervisory jurisdiction under Article 227 should be exercised to remedy material irregularity caused by treating verification as mandatory (Paras 12, Order).
Issue of Consideration
Whether personal verification of the complainant is mandatory before issuing process in a complaint under Section 138 of the Negotiable Instruments Act, 1881; whether dismissal of the complaint for want of prosecution on the ground of non-appearance for verification was justified; whether the High Court should exercise supervisory jurisdiction under Article 227 of the Constitution to restore the complaint subject to costs
Final Decision
Writ petition allowed. Order dated 12.09.2023 passed by 16th Joint Civil Judge Senior Division and Additional Chief Judicial Magistrate (Spl. Court for S.138 N.I. Act), Nagpur in Summary Criminal Case No.7131 of 2017 and judgment and order dated 16.12.2024 passed by Additional Sessions Judge-12, Nagpur in Criminal Revision No.330 of 2023 quashed and set aside, subject to petitioner depositing Rs 50,000 before trial court within three weeks. Amount if deposited to be paid to respondent through his counsel. Upon deposit, complaint to be heard on merits and fresh decision on issue of process without being influenced by observations of High Court. Rule made absolute. No order as to costs.
Law Points
- Under Section 138 of Negotiable Instruments Act
- 1881 read with Sections 142 and 145 and Section 200 of Code of Criminal Procedure
- 1973
- Magistrate has discretion whether to examine complainant on oath before issuing process
- examination of complainant not mandatory
- process can be issued on complaint
- documents and affidavit
- dismissal solely for non-appearance for verification without recording reasons is erroneous
- Article 227 supervisory jurisdiction can restore complaint subject to costs for bona fides
