IMPORTANT POINTS
In view of section 145, NI Act now the Complainant entitled to give evidence on affidavit.
There would not be infirmity in taking cognizance without examining the complainant on solemn affirmation if evidence is given on affidavit.
Taking cognizance without condemning delay in filing complaint would not be proper.

Headnote:(a) Negotiable Instruments Act, 1881 – Section 145 r/w section 200, Code of Criminal Procedure, 1973 – Examination of complainant on solemn affirmation u/s 200 Cr PC – Done away by section 145 – Complainant entitled to give evidence on affidavit – The affidavit has to be read in evidence in any enquiry, trial or other proceeding under Cr PC – Taking cognizance without examining complainant on solemn affirmation – No infirmity. (Para 4)
       (2010) 3 SCC 83 – Relied upon
       (b) Negotiable Instruments Act, 1881 – Section 138 and 142 – Delay of 62 days in filing complaint – Taking cognizance without issuing notice to condone the delay – Appellant replying to notice of complainant on 20.02.2006 – Complaint filed on 24.05.2006 – Delay not condoned before issuance of summons – Further, accused shown to be residing at a place beyond The Magistrate’s jurisdiction requiring an enquiry or investigation u/s 202, Cr PC – Question of law whether such requirement of enquiry or investigation is attracted even for offences under the Act left open. (Para 6, 10)
       (2008) 13 SCC 229; (2014) 14 SCC 638 – Relied upon
       Facts of the case:
       Cognizance was taken u/s 138, N.I. Act against the appellant and summon were issued.
       Appellant approached the High Court u/s 482 Cr PC which was rejected.
       Finding of the Court:
       Taking cognizance without condoning the delay of 62 days in filing the complaint was not proper.
       Result: Matter remitted back.

JUDGMENT :

SHIVA KIRTI SINGH, J.

By the common impugned order dated 04.09.2012 passed in Crl.M.C. Nos. 2902 and 2903 of 2012 by the High Court of Kerala at Ernakulam under Section 482 of the Code of Criminal Procedure (for short, ‘Cr.P.C.’) prayer of the appellant to quash order of cognizance and issuance of summons in a case under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as ‘the Act’) has been rejected by a very short and summary order to the effect that submissions were not impressive and if the appellant has any sustainable ground of defence, he can canvass the same before the Magistrate.

2. The appellant is an accused in two cases of similar nature wherein cheques issued by the accused person in favour of the complainant have not been honoured. On behalf of appellant it was highlighted that the cheques bounced on 24.01.2006 because of a direction to stop payment issued by the appellant because he had allegedly already made all the required payments. His defence that five blank cheques had been given to the complainant by way of security cannot be considered at the present stage but he has raised three other legal grounds. Firstly, the complaint suffered from delay of 62/63 days and the same had to be condoned after notice but that was not done. The second grievance of the appellant is that cognizance could not have been taken without complying with the mandate of Section 200 of the Cr.P.C. and examining the complainant on solemn affirmation. The last submission of learned senior counsel for the complainant, Mr. K. Radhakrishnan is that the appellant being an accused and a resident of an area outside the territorial jurisdiction of the Magistrate who has issued summons, an enquiry within the meaning of Section 202 of the Cr.P.C. was mandatory and since that was not done, the order of cognizance and issuance of summons is bad in law.

3. So far as the issue of examination of complainant on solemn affirmation under Section 200 of the Cr.P.C. is concerned, the submissions are misconceived on account of Section 145 of the Act which was inserted along with some other Sections through an amendment in the year 2002 w.e.f. 06.02.2003. Section 145 of the Act is 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.”

4. The non obstante clause in sub-section (1) of Section 145 is self-explanatory and over-rules the requirement of examination of the complainant on solemn affirmation under Section 200 of the Cr.P.C. Now the complainant is entitled to give his evidence on affidavit and subject to all just exceptions, the same has to be read in evidence in any enquiry, trial or other proceeding under the Cr.P.C. This view is also supported by the judgment of this Court in the case of Mandavi Cooperative Bank Ltd. v. Nimesh B. Thakore [(2010) 3 SCC 83]. No doubt this judgment was in a different factual scenario but this Court went into details of the amendment of 2002 including Section 145 and in paragraph 18 it also noted the Statement of Objects and Reasons appended to the Amendment Bill. Inter alia, the objects included “to prescribe procedure for dispensing with preliminary evidence of the complainant”.

5. In view of discussion made above, the plea based on Section 200 of the Cr.P.C. is rejected as untenable. The other plea relating to delay of 62 days and taking of cognizance without issuing notice to dispense with such delay is however found to have substance. The relevant provision under Section 142 of the Act requires making of the complaint within o

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