The admissibility of pre-summoning evidence and the complainant's sworn statement as evidence at the stage of inquiry under Section 200 Cr.P.C., and the applicability of Section 145 of the Negotiable Instruments Act.

A. K. SIKRI, J. (ORAL) : The respondent herein filed a complaint under Section 138 read with Section 142 of the Negotiable Instruments Act, 1881 (hereinafter referred to as `the Act') in the Court of the learned Metropolitan Magistrate. It is alleged therein that the respondent had given laon of Rs. 18,60,000/- to the petitioner on interest @ 24% p.a. For repayment of this amount, the petitioner herein issued a cheque bearing No. 004050 dated 25.12.2003 for Rs. 18,60,000/- drawn on Corporation Bank, Palam, New Delhi. When the cheque was presented, it was returned unpaid for the reason `Stop payment' vide returning memo dated 16.4.2004. The respondent served legal notice and thereafter filed the aforesaid complaint. Summons have been issued to the petitioner in the said complaint. Challenging the summoning order, the present petition is filed.

2. It is, inter alia, pleaded that there was no such loan transaction between the parties, the petitioner, on account of his being hard pressed for time, normally gives his cheque book to his wife at times with several signed cheque leaves; the fact was known to one Ranbir, S/o. Jundan Lal, who happens to be elder brother of his wife and it is possible that he has committed mischief by stealing the blank cheque and filling the particulars therein. It is further stated that the petitioner had reported the matter to the Police and gave instructions to the bank to stop the payment, after he came to know that the cheque book containing cheque Nos. 111031-111040 was lost, which contained the cheque in question as well. The aforesaid defence raised is a matter for trial as these disputed questions of fact cannot be decided in these proceedings under Section 482 Cr.P.C. In fact, this is the defence of the petitioner which has to be decided by the trial court after recording evidence of both the parties.

3. The other submission made is that before issuing the summons, the learned Metropolitan Magistrate did not comply with the provisions of Section 200 Cr.P.C. inasmuch as no pre-summoning evidence was recorded. It is further submitted that though the respondent had filed the affidavit, mere filing of the same was not sufficient compliance of the provisions of Section 200 Cr.P.C. as it was necessary for her to tender the said evidence in the court. The summoning order reads as under :

"PRESENT : Complaint (sic) with counsel.

An evidence by way of affidavit filed today. Pre-summoning evidence closed. Fresh complaint received today an assignment. It be checked and registered.

Argument on the point of summoning heard and record perused.

The cheque Ex CW1/A is deposed to have been issued by the accused in discharge of his liabilities towards the complainant, and the cheque on presentation was dishonoured due to reason of "Funds insufficient on 16.04.04 vide return memo Ex CW1/D legal notice Ex CW1/C dated 13.05.04 was sent to the accused within the period of limitation through registered AD postal receipts. Exhibit CW1/D. It is deposed that even after receipt of notice the cheque amount have not been paid by the accused to the complainant. The present case has been filed within the prescribed period of limitation on 10.06.04. I am also satisfied regarding jurisdiction of this court. There is sufficient material to summon the Accused u/s. 138 Negotiable Instrument Act.

Accordingly issue summons to accused u/s 138 of Negotiable Instrument Act upon filing of PF/RC/AD and as well as through approved courier. Copies of complaint and documents, list of witnesses for 30.07.04."

4. It is clear from the aforesaid order that the respondent/complainant was present in the Court and evidence by way of affidavit was filed. On taking the evidence by way of affidavit in the presence of the complainant, the learned MM closed the pre-summoning evidence and thereafter arguments on the point of summoning were heard, record perused and order of summoning of the petitioner was passed. Therefore, it cannot be said