IMPORTANT POINT
Evidence of complainant may be given on affidavit not only during course of trial but even at pre-summoning stage.

M.N. Bhandari, J.—This criminal miscellaneous petition involves following important questions of law:

1. In a complaint for an offence under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I. Act’) whether evidence of the complainant may be given on affidavit at pre-summoning stage?

2. What is the effect of Sections 4 and 5 of the Code of Criminal Procedure (for short ‘the Cr.P.C.’) on Section 145 of the N.I. Act. Whether the provision of Section 145 has overriding effect over the provisions of the Cr.P.C.?

2. It is a case where complaint was filed for an offence under Section 138 of the N.I. Act. The complainant submitted affidavit at pre-summoning stage and thereupon order of cognizance was passed. The petitioner herein filed an application for recalling the order of cognizance on the ground that complainant should have been examined on oath. Application was dismissed vide order dated 1.2.2010 holding that it has been filed only with a view to delay the matter as otherwise, case is now fixed for cross-examination of the witnesses. Aggrieved by the aforesaid two orders, this criminal miscellaneous petition has been filed under Section 482 of the Cr.P.C.

3. It is urged by learned counsel for petitioner that the Court below committed an error in issuing process as per Section 204 of the Cr.P.C. without examining complainant and his witnesses as per the procedure provided under Sections 200 and 202 of the Cr.P.C. Section 145 of the N.I. Act does not override Sections 200 and.202 of Cr.P.C. For issuance of process on a complaint, it is mandatory for the Magistrate to examine the complainant and his witness(s) on oath. In the present matter, aforesaid procedure has not been complied as at pre-summoning stage, complainant was examined on affidavit. The issue aforesaid is covered by a judgment of this Court in case of Prakash Chand v. State of Rajasthan and another.1 Therein it was held that in view of provisions of Sections 4 & 5 of the Cr.P.C., Section 145 of the N.I. Act does not have override Section 200 of the Cr.P.C. The prayer of learned counsel for petitioner is, accordingly, to set aside the two orders under challenge.

4. Per contra, learned counsel for non-petitioner, Mr. Neeraj Sharma, submits that Section 145 of the N.I. Act contains a non-obstante clause. The provisions of the Code of Criminal Procedure are not attracted to the extent it is specified in the aforesaid provision. The complainant can be examined on affidavit even at a pre-summoning stage. Learned member of the Bar, Mr. V.R. Bajwa, submits that Section 145 of the N.I. Act permits evidence of the complainant on affidavit and subject to all just exceptions be read in evidence in any inquiry, trial or other proceeding. The words ‘enquiry, trial and other proceeding’ used under Section 145 of the N.I. Act are of significance. The evidence of the complainant on affidavit is to be read not only in ‘trial’ but in ‘enquiry’ and ‘other proceeding’ also. In Prakash Chand’s case (supra), the two words used under Section 145 of the N.I. Act i.e. ‘enquiry’ and ‘other proceedings’ escaped from the notice of the Court. The issue aforesaid was otherwise considered by the Hon’ble Apex Court in case of Radhey Shyam Garg v. Naresh Kumar Gupta2 which has not been noticed in Prakash Chand’s case.

5. Learned counsel Mr. Pankaj Gupta submits that issue involved in this case was elaborately discussed by the Delhi High Court in case of Radhey Shyam Garg v. Naresh Kumar Gupta.3 Referring to Section 145 of the N I Act, it was held that provisions of the Code of Criminal Procedure do not override Section 145 as it contains non-obstante clause. Judgment of the Delhi High Court was upheld by the Hon’ble Apex Court, thus the issue raised herein needs no more debate.

6. Learned counsel Mr. Ashok Gaur submits that in a recent judgment in case of M/s Mandvi Co-operative Bank Ltd. v. Nimesh B. Thakore4 the Hon’ble Apex Court has categorically held that provision