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Synopsis

The Supreme Court recently said while filing a complaint under Section 200 of CrPC and recording of statement on oath, when the complainant suppresses material facts and documents, he cannot be allowed to set criminal law in motion.

A bench of Justices Abhay S Oka and Ujjal Bhuyan said setting the criminal law in motion by suppressing material facts and documents is nothing but an abuse of the process of law.  

The court allowed an appeal filed by Rekha Sharad Ushir and quashed the criminal proceedings pending before a court of Judicial Magistrate First Class at Kalwan and the order of cognizance on March 2, 2017, in a complaint filed by Saptashrungi Mahila Nagari Sahkari Patsansta Ltd, a credit cooperative society for dishonour of cheque under Section 138 of the Negotiable Instruments Act.

The court pointed out the fact remained that in the complaint, the respondent had suppressed the reply of November 28, 2016, and the letter of December 13, 2016, sent by the appellant’s advocate. These two documents had also been suppressed in the statement on oath. 

"The respondent made out a false case that the appellant did not reply to the demand notice. Moreover, the case that the documents as demanded were supplied is not pleaded in the complaint and statement under Section 200 of CrPC," the bench said.

It is settled law that a litigant who, while filing proceedings in the court, suppresses material facts or makes a false statement, cannot seek justice from the court. The facts suppressed must be material and relevant to the controversy, which may have a bearing on the decision-making. Cases of those litigants who have no regard for the truth and those who indulge in suppressing material facts need to be thrown out of the court, the bench underscored.

"Setting criminal law in motion is a serious matter. The accused faces serious consequences in the sense that he has to defend himself in the trial," the bench said. 

In the case, the appellant in respect of the demand notice to the overdraft facility of Rs 11,97,000 and dishonour of cheque to the sum of Rs 27,27,460, sent two letters seeking documents based on which such demand was raised. 

In the counter to the present appeal, the respondent did not deny the receipt of the letters of November 28, 2016, and December 13, 2016. The complaint and affidavit in support of thereof only referred to the notice of November 15, 2016, issued by the advocate for the appellant to the respondent. 

The respondent suppressed the letters of November 28, 2016, and December 13, 2016, in the complaint and its statement on oath.

Now, by filing an additional affidavit, it is contended by the respondent that certain documents were supplied to the appellant, the bench noted.

The court also pointed out that a counter to this appeal was filed by the respondent on August 7, 2024, in which it was not even a case made out that requisite documents, as demanded by the appellant, were handed over to her on November 29, 2016. 

A case was belatedly made out for the first time by filing an additional affidavit on January 9, 2025, that statements of loan account sought by the appellant were furnished to her and her signature appeared on the statements, the court said.

In the additional affidavit, the respondent alleged that by a letter of November 29, 2016, the appellant had called upon the respondent to provide the loan account statements of the six loan accounts mentioned in the said letter. 

"Therefore, the stand taken in January 2025 that the statement of accounts was supplied on November 29, 2016 is clearly an afterthought," the bench said.   

The bench said a court of the Judicial Magistrate can take cognizance of an offence punishable under Section 138 of the NI Act based on a complaint filed under Section 200 of the Code of Criminal Procedure, 1973. The corresponding provision under the Bhartiya Nagarik Suraksha Sanhita, 2023 is Section 223. After a complaint is filed under Section 200 of the CrPC, the Magistrate is duty-bound to examine the complainant on oath and witnesses, if any, present and reduce the substance of such examination into writing. What is reduced into writing is required to be signed by the complainant and witnesses, if any.

"Recording the complainant's statement on oath under Section 200 of the CrPC is not an empty formality. The object of recording the complainant's statement and witnesses, if any, is to ascertain the truth. The Magistrate is duty-bound to put questions to the complainant to elicit the truth. The examination is necessary to enable the Court to satisfy itself whether there are sufficient grounds to proceed against the accused," the bench said.

After considering the complaint, the documents produced along with the complaint, and the statements of the complainant and witnesses, if any, the Magistrate has to apply his mind to ascertain whether there is sufficient ground for proceeding against the accused. If he is satisfied that there is sufficient ground to proceed against the accused, then the Magistrate has to issue a process in terms of sub-Section (1) of Section 204 of the CrPC. The corresponding provision under the BNSS is Section 227, it said.

The court further pointed out, Section 138 of the NI Act has three conditions incorporated in clauses (a) to (c) of the proviso. Firstly, the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. Secondly, if a cheque is returned by the bank unpaid, the payee or the holder in due course must make a demand for payment of the amount of money covered by the cheque by issuing a notice in writing within 30 days of receipt of information from the bank regarding the return of the cheque as unpaid. The third condition is that the drawer of the cheque must fail to make payment of the amount covered by the cheque within 15 days of the receipt of the notice. 

In the case, the bench said if the two letters were disclosed in the complaint, the Magistrate while recording the statement under Section 200 of CrPC, could have always questioned the respondent on the supply of documents to the appellant. 

The court emphasised it was the respondent's duty to supply documents to the appellant or her advocate to enable the appellant to properly reply to the demand notice. At least, the inspection of documents could have been provided to the appellant, court stressed.

After noticing the fact that notwithstanding service of two letters written by the appellant, relied-upon documents were not provided to the appellant, the Magistrate could have dismissed the complaint by exercising power under Section 203 of CrPC, as the appellant could not have replied to the statutory notice without looking at the documents relied upon, the bench said.

The court said this was a case where very material documents in the form of two letters addressed by the appellant were suppressed in the complaint and the statement on oath under Section 200 CrPC and the high court ought to have interfered and quashed the complaint.       

The bench set aside the impugned order by the high court, while making it clear that the other remedies of the respondent to file proceedings for recovery of the amount allegedly due and payable by the appellant in accordance with law will remain open.

Case Title: Rekha Sharad Ushir Vs Saptashrungi Mahila Nagari Sahkari Patsansta Ltd