Negotiable Instruments Act, 1881 – ss. 138 and 142 – Complaint under – Without signature – But verified by the complainant – Maintainability

SUPREME COURT REPORTS [2012] 13 S.C.R.

2012] 13 S.C.R. 129 130
INDRA KUMAR PATODIA & ANR.
v.
RELIANCE INDUSTRIES LTD. AND ORS.
(Criminal Appeal No. 1837 of 2012 etc.)
NOVEMBER 22, 2012
[P. SATHASIVAM AND RANJAN GOGOI, JJ.]
Negotiable Instruments Act, 1881 – ss. 138 and 142 –
Complaint under – Without signature – But verified by the
complainant – Maintainability – Held: The complaint without
signature is maintainable, when such complaint is verified by
the complainant and process is issued by the Magistrate after
due verification – The complaint is required necessarily to be
in writing and need not be signed – Legislative intent was that
‘writing’ does not pre-suppose that the same has to be signed
– ‘Signature’ within the meaning of ‘writing’ would be adding
words to the Section, which the legislature did not contemplate
– Code of Criminal Procedure, 1973 – ss. 2 (d) – General
Clauses Act, 1897 – ss. 3(56) and 3(65) – Interpretation of
Statutes.
Interpretation of Statutes – Interpretation of non-obstante
clause – Held: While interpreting non-obstante clause, the
Court is required to find out the extent to which the legislature
intended to exclude a provision and the context in which such
clause is used.
Words and Phrases – ‘Complaint in writing’ – Meaning
of, in the context of s. 142(a) of Negotiable Instruments Act,
1881.
The question for consideration in the present
appeals was whether the complaint u/s.138 of Negotiable
Instruments Act, 1881, without signature of the
complainant is maintainable, when such complaint is
verified by the complainant and the process is issued by
the Magistrate after verification.
Dismissing the appeals, the Court
HELD: 1.1 The complaint u/s.138 of Negotiable
Instruments Act, 1881, without signature, is maintainable,
when such complaint is verified by the complainant and
the process is issued by the Magistrate after due
verification. The prosecution of such complaint is
maintainable. [Para 19] [147-E-F]
1.2 A non obstante clause has to be given restricted
meaning and when the section containing the said clause
does not refer to any particular provisions which intends
to over-ride, but refers to the provisions of the statute
generally, it is not permissible to hold that it excludes the
whole Act and stands all alone by itself. There requires
to be a determination as to which provisions answers the
description and which does not. While interpreting the
non obstante clause, the Court is required to find out the
extent to which the legislature intended to do so and the
context in which the non obstante clause is used. [Para
12] [141-E-G]
1.3 Section 2(d) Cr.P.C. provides that the complaint
needs to be oral or in writing. The non obstante clause
in Section 142 of the Act, when it refers to Cr.P.C, only
excludes the oral part in such definition. Thus, the non
obstante clause in s. 142(a) is restricted to exclude two
things only from Cr.P.C. i.e. (a) exclusion of oral
complaints and (b) exclusion of cognizance on complaint
by anybody other than the payee or the holder in due
course. [Paras 12 and 13] [141-G-H; 142-A]
1.4 Section 190 Cr.P.C. provides that a Magistrate can
take cognizance on a complaint which constitutes such
an offence irrespective of who had made such complaint 129 SUPREME COURT REPORTS [2012] 13 S.C.R.
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INDRA KUMAR PATODIA v. RELIANCE INDUSTRIES 131 132
LTD.
or on a police report or upon receiving information from
any person other than a police officer or upon his own
knowledge. Non obstante clause, when it refers to the
core, restricts the power of the Magistrate to take
cognizance only on a complaint by a payee or the holder
in due course and excludes the rest of Section 190
Cr.P.C. In other words, none of the other provisions of
the Cr.P.C. are excluded by the said non obstante clause,
hence, the Magistrate is therefore required to follow the
procedure under Section 200 Cr.P.C., once he has taken
the complaint of the payee/holder in due course and
record statement of the complainant and such other
witnesses as present at the said date. Here, Cr.P.C.
specifically provides that the same is required to be
signed by the complainant as well as the witnesses
making the statement. [Para13] [142-A-D]
1.5 Mere presentation of the complaint is only the first
step and no action can be taken unless the process of
verification is complete and, thereafter, the Magistrate has
to consider the statement on oath, that is, the verification
statement under Section 200 Cr.P.C. and the statement of
any witness, and the Magistrate has to decide whether
there is sufficient ground to proceed. Section 203 Cr.P.C.
provides that the Magistrate if is of opinion that there is
no sufficient ground for proceeding, he shall dismiss the
complaint. A person could be called upon to answer a
charge of false complaint/perjury only on such verification
statement and not mere on the presentation of the
complaint as the same is not on oath and, therefore, need
to obtain the signature of the person. Apart from the above
Section, the legislative intent becomes clear that “writing”
does not pre-suppose that the same has to be signed.
Various sections in Cr.P.C. viz. Sections 61, 70, 154, 164
and 281, when contrasted with Section 2(d) clarify that the
legislature was clearly of the intent that a written complaint
need not be signed. [Para 13] [143-B-G]
1.6 The legislature has made it clear that wherever it
required a written document to be signed, it should be
mentioned specifically in the section itself, which is
missing both from Section 2(d) Cr.P.C. as well as Section
142 of the Act. The General Clauses Act, 1897 too draws
a distinction between writing and signature and defines
them separately. Section 3(56) defines signature and
Section 3(65) defines writing. Writing as defined by
General Clauses Act requires that the same is
representation or reproduction of “words” in a visible
form and does not require signature. “Signature” within
the meaning of “writing” would be adding words to the
Section, which the legislature did not contemplate. [Para
13 & 14] [145-B-D, G]
1.7 In the present case, the complaint was presented
in person and on the direction by the Magistrate, the
complaint was verified and duly signed by the authorized
officer of the Company-the complainant. No prejudice
has been caused to the accused for non-signing the
complaint. The statement made on oath and signed by
the complainant safeguards the interest of the accused.
In view of the same, the requirements of Section 142(a)
of the Act is that the complaint must necessarily be in
writing and the complaint can be presented by the payee
or holder in due course of the cheque and it need not be
signed by the complainant. If the legislature intended that
the complaint under the Act, apart from being in writing,
is also required to be signed by the complainant, the
legislature would have used different language and
inserted the same at the appropriate place. The correct
interpretation would be that the complaint under Section
142(a) of the Act requires to be in writing as at the time
of taking cognizance, the Magistrate will examine the
complainant on oath and the verification statement will
be signed by the complainant. [Para 15] [146-A-D]

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