IMPORTANT POINT
In a prosecution for dishonour of cheque, complainant is entitled to file affidavit in support of his evidence at inquiry stage under Sections 200 and 202 Cr.P.C.

J.C.S. Rawat, J.—Heard Sri Vinod Sharma learned counsel for the applicant and learned A.G.A. and perused the record.

2. The present application has been filed under Section 482, Cr.P.C. for quashing the criminal proceedings in case No. 1804/2004 State v. Vinod Singh Negi pending before the Chief Judicial Magistrate Dehradun.

3. Brief facts are that a complaint was filed under Section 138 of the Negotiable Instruments Act before the Chief Judicial Magistrate, Dehradun. The complainant filed the affidavits in support of his case under Sections 200 and 202, Cr.P.C. and thereafter the cognizance was taken by the learned Magistrate vide Order dated 3.9. 2003. Feeling aggrieved by the said Order the present application has been filed under Section 482, Cr.P.C.

4. The only point raised before me is as to whether the complainant was entitled to file the affidavits in support of his evidence under Sections 200 and 202, Cr.P.C. or not. The learned counsel for the applicant contended that under Sections 200 and 202, Cr.P.C. the statements on oath have to be recorded by the learned Magistrate. The learned counsel for the applicant further contended that in the present case the complainant was neither examined under Section 200, Cr.P.C. on oath nor his witnesses under Section 202, Cr.P.C. and only the affidavits were accepted whereupon the cognizance was taken. The learned AGA refuted the contention and contended that there is specific provision under the Negotiable Instruments Act in which the complainant may adduce his evidence through affidavits in any enquiry or trial. Section 145 of the Negotiable Instruments Act reads as under:

“Evidence on affidavits—(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”.

5. Perusal of the above section clearly permits the Magistrate to take the evidence on affidavits. If the Magistrate takes the cognizance and proceeds under Section 200 and 202 Cr.P.C. it is an inquiry under the provisions of Cr.P.C. and the complainant is entitled to file the affidavits in support of his evidence. No other point was raised.

6. In view of the above discussion I am of the view that the petition devoids of merit and is liable to be dismissed.

7. The petition is dismissed.

Petition dismissed.

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