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Sunday, 12 December 2021

Whether court can issue process in cheque dishonour case only on the basis of affidavit of complainant?

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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