Recently, Constitution Bench of Hon'ble Supreme Court In
Re.: Expeditious Trial of Cases Under Section 138 N.I.
Act 1881 reported in [AIR 2021 Supreme Court 1957] in
paragraph-12 observed as under:-
"12. Another point that has been brought to our notice
relates to the interpretation of Section 202 (2) which
stipulates that the Magistrate shall take evidence of the
witness on oath in an inquiry conducted under Section 202
(1) for the purpose of issuance of process. Section 145 of
the Act provides that the evidence of the complainant may
be given by him on affidavit, which shall be read in
evidence in any inquiry, trial or other proceeding,
notwithstanding anything contained in the Code. Section
145 (2) of the Act enables the court to summon and
examine any person giving evidence on affidavit as to the
facts contained therein, on an application of the
prosecution or the accused. It is contended by the learned
Amici Curiae that though there is no specific provision
permitting the examination of witnesses on affidavit,
Section 145 permits the complainant to be examined by
way of an affidavit for the purpose of inquiry under Section
202. He suggested that Section 202 (2) should be read
along with Section 145 and in respect of complaints under
Section 138, the examination of witnesses also should be
permitted on affidavit. Only in exceptional cases, the
Magistrate may examine the witnesses personally. Section
145 of the Act is an exception to Section 202 in respect of
examination of the complainant by way of an affidavit.
There is no specific provision in relation to examination of
the witnesses also on affidavit in Section 145. It becomes
clear that Section 145 had been inserted in the Act, with
effect from the year 2003, with the laudable object of
speeding up trials in complaints filed under Section 138. If
the evidence of the complainant may be given by him on
affidavit, there is no reason for insisting on the evidence of
the witnesses to be taken on oath. On a holistic reading of
Section 145 along with Section 202, we hold that Section
202 (2) of the Code is inapplicable to complaints under
Section 138 in respect of examination of witnesses on
oath. The evidence of witnesses on behalf of the
complainant shall be permitted on affidavit. If the
Magistrate holds an inquiry himself, it is not compulsory
that he should examine witnesses. In suitable cases, the
Magistrate can examine documents for satisfaction as to
the sufficiency of grounds for proceeding under Section
202."
Thus, it is clear from the above judgement of Hon'ble
Supreme Court that even on the basis of affidavit filed on
behalf of the complainant, an accused can be summoned
under Section 138 Negotiable Instruments Act and there is
no need to record statements under Sections 200 and 202
Cr.P.C.
ALLAHABAD HIGH COURT
Case :- APPLICATION U/S 482 No. - 14051 of 2008
Applicant :- Virendra Kumar Sharma
Opposite Party :- State of U.P. and Another
Hon'ble Sameer Jain,J.
Order Date :- 8.12.2021
Case called out in the revised list. Despite service of notice,
none appeared on behalf of the opposite party No. 2.
Heard Sri Manoj Kumar Rai, learned counsel for the
applicant, learned AGA for the State-respondent and
perused the record.
The present application u/s 482 Cr.P.C. has been filed by
the applicant to quash the proceedings of complaint case
No. 1690 of 2007, (Surendra Singh Vs. Virendra Kumar
Sharma), under Section 138 Negotiable Instruments Act,
P.S. Bhelpur, District Varanasi pending before IInd Chief
Judicial Magistrate, Varanasi.
Learned counsel for the applicant, at the very outset,
contended that he is challenging the proceeding pending
against the applicant only on the sole ground that without
recording the statements of opposite party No. 2 and
witnesses, under sections 200 and 202 Cr.P.C., summoning
order dated 2.2.2008 was passed by the learned Additional
Chief Judicial Magistrate, Court No. 2, Varanasi against the
applicant, therefore, entire proceeding of the impugned
complaint case, pending against the applicant, is bad in the
eye of law.
Except this, no other argument was advanced on behalf of
the applicant.
Per contra, learned AGA contended that for passing the
summoning order under Section 138 Negotiable
Instruments Act, there is no requirement of recording of the
statements under Sections 200 and 202 Cr.P.C. and if as
per the trial court, complaint discloses prima facie offence
under Section 138 Negotiable Instruments Act then
applicant/accused can be summoned and, therefore, there
is no illegality in the summoning order and the present
applicant u/s 482 Cr.P.C. is liable to be rejected .
The present matter relates to Negotiable Instruments Act
and on 2.2.2008, applicant was summoned under Section
138 Negotiable Instruments Act.
Perusal of the summoning order dated 2.2.2008 shows that
cheque issued by the applicant in favour of the Firm of
opposite party No. 2 was dishonoured and thereafter,
notices on behalf of opposite party No. 2 were given to the
applicant for payment of the cheque amount but inspite of
that, no payment was made then ultimately opposite party
No. 2 filed complaint of the present case, under Section
138 Negotiable Instruments Act against the applicant.
Therefore, from the perusal of the complaint, a prima facie
case under Section 138 Negotiable Instruments Act is
made out against the applicant.
Further, Section 145 of the Negotiable Instruments Act,
1881, which was introduced by the Parliament by Act No.
55 of 2002 (w.e.f. 6.2.2003), states as follows:-
145. Evidence on affidavit.—
(1) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973 (2 of 1974), the evidence of the
complainant may be given by him on affidavit and may,
subject to all just exceptions be read in evidence in any
enquiry, trial or other proceeding under the said Code.
(2)The Court may, if it thinks fit, and shall, on the
application of the prosecution or the accused, summon
and examine any person giving evidence on affidavit as to
the facts contained therein.
Thus, as per Section 145(1) of the Negotiable Instruments
Act, the evidence of complainant may be given by him on
affidavit, and for summoning of accused under Section 138
Negotiable Instruments Act, recording of statements under
Sections 200 and 202 Cr.P.C., is not required.
In the present case, from the perusal of the summoning
order dated 2.2.2008, it is apparent that while passing this
order, learned Magistrate perused the complaint as well as
affidavit filed in support of the complaint filed by opposite
party No. 2 and other documents including cheque etc. and,
therefore, in view of the Provisions of Section 145 (i)
Negotiable Instruments Act, it cannot be said that learned
trial court committed any error while summoning the
applicant as there was no need to record the statements
either under Sections 200 Cr.P.C. or 202 Cr.P.C.
Recently, Constitution Bench of Hon'ble Supreme Court In
Re.: Expeditious Trial of Cases Under Section 138 N.I.
Act 1881 reported in [AIR 2021 Supreme Court 1957] in
paragraph-12 observed as under:-
"12. Another point that has been brought to our notice
relates to the interpretation of Section 202 (2) which
stipulates that the Magistrate shall take evidence of the
witness on oath in an inquiry conducted under Section 202
(1) for the purpose of issuance of process. Section 145 of
the Act provides that the evidence of the complainant may
be given by him on affidavit, which shall be read in
evidence in any inquiry, trial or other proceeding,
notwithstanding anything contained in the Code. Section
145 (2) of the Act enables the court to summon and
examine any person giving evidence on affidavit as to the
facts contained therein, on an application of the
prosecution or the accused. It is contended by the learned
Amici Curiae that though there is no specific provision
permitting the examination of witnesses on affidavit,
Section 145 permits the complainant to be examined by
way of an affidavit for the purpose of inquiry under Section
202. He suggested that Section 202 (2) should be read
along with Section 145 and in respect of complaints under
Section 138, the examination of witnesses also should be
permitted on affidavit. Only in exceptional cases, the
Magistrate may examine the witnesses personally. Section
145 of the Act is an exception to Section 202 in respect of
examination of the complainant by way of an affidavit.
There is no specific provision in relation to examination of
the witnesses also on affidavit in Section 145. It becomes
clear that Section 145 had been inserted in the Act, with
effect from the year 2003, with the laudable object of
speeding up trials in complaints filed under Section 138. If
the evidence of the complainant may be given by him on
affidavit, there is no reason for insisting on the evidence of
the witnesses to be taken on oath. On a holistic reading of
Section 145 along with Section 202, we hold that Section
202 (2) of the Code is inapplicable to complaints under
Section 138 in respect of examination of witnesses on
oath. The evidence of witnesses on behalf of the
complainant shall be permitted on affidavit. If the
Magistrate holds an inquiry himself, it is not compulsory
that he should examine witnesses. In suitable cases, the
Magistrate can examine documents for satisfaction as to
the sufficiency of grounds for proceeding under Section
202."
Thus, it is clear from the above judgement of Hon'ble
Supreme Court that even on the basis of affidavit filed on
behalf of the complainant, an accused can be summoned
under Section 138 Negotiable Instruments Act and there is
no need to record statements under Sections 200 and 202
Cr.P.C.
Having considered the aforesaid facts and circumstances of
the case, it is apparent that there is no illegality committed
by the learned trial court while passing the summoning
order dated 2.2.2008 against the applicant. Therefore, the
present application u/s 482 Cr.P.C., is devoid of merit and
is, accordingly, dismissed.
Interim order, if any, stands vacated.
Order Date :- 8.12.2021
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