The main legal point established in the judgment is that there is no provision for recording evidence on a preliminary objection taken by an accused in a complaint under Section 138 of the Negotiable Instruments Act, 1881, and such action would be without jurisdiction.

1. This revision is directed against the order dated 28.5.2010 passed in Criminal Revision No. 27/2010 by the Fourth Additional Session Judge (ET.C.), Raigarh. By the impugned order the learned Session Judge has directed the trial Court to take evidence of the parties on the preliminary objection taken by the respondent accused in a complaint u/s 138 of the Negotiable Instruments Act, 1881 pleading that the complaint itself was not maintainable, and to decide the same after taking evidence of both the parties at preliminary stage.

2. The facts, briefly stated, are as under :

A complaint u/s 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act or N.I. Act, 1881) was filed by the applicant. This came to be registered as Criminal Case No. 761 2008 of the Court of Judicial Magistrate, First Class, Raigarh. After the notice, the respondent took an objection by filing an application u/s 142 of the N.I. Act and prayed for dismissal of the complaint. The learned trial Judge dismissed the above application. This order was challenged in Criminal Revision by the respondent. The Session Court took the view that for deciding the objection raised by the respondent u/ss 138 (b) & 142, evidence of the Branch Manager of the concerned Bank would be necessary as the controversy raised in the objection could be resolved by such evidence, therefore, the learned Magistrate erred in law in dismissing the preliminary objection without taking the evidence. The learned Magistrate ought to have recorded the evidence on the preliminary objection and then, the said objection would have been decided. Thus, the order passed by the learned Magistrate on 8.1.2010 rejecting the preliminary objection of the respondent was set-aside and it was directed by the revisional Court to take evidence on preliminary objection and then to take a decision regarding maintainability of the complaint filed u/s 138 of the N.I. Act.

3. Mr. Roop Naik, learned counsel appearing on behalf of the applicant, argued that the cases of Negotiable Instruments Act are to be tried summarily and there is no provision for recording evidence on preliminary objection therefore, the direction issued by the Session Court is bad-in-law and the same deserves to the set-aside.

4. On the other hand, Mr. Abhishek Saraf, learned counsel appearing on behalf of the respondent, opposed these arguments and supported the order passed by the Session Court.

5. I have heard learned counsel for the parties and have also perused the records of the revision petition.

6. Section 143 of the N.I. Act, 1881 provides power of Court to try cases summarily. It reads as under:

"143. Power of Court to try cases summarily.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the first class or by a Metropolitan Magistrate and the provisions of sections 262 to 265, (both inclusive) of the said Code shall, as far as may be, apply to such trials:

Provided that in the case of any conviction in a summary trial under this section, it shall be lawful for the Magistrate to pass a sentence of imprisonment for a term not exceeding one year and an amount of fine exceeding five thousand rupees:

Provided further that when at the commencement of, or in the course of, a summary trial under this section, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment for a term exceeding one year may have to be passed or that it is, for any other reason, undesirable to try the case summarily, the Magistrate shall after hearing the parties, record an order to that effect and thereafter recall any witness who may have been examined and proceed to hear or rehear the case in the manner provided by the said Code.

(2) The trial of a case under this section shall, so far as practicable, consistently with the interests of justice, be continued from day to day until its con