Dishonour of Cheque--Post Summoning Evidence--Complainant can file fresh affidavit alongwith additional documents at post summoning stage

JUDGMENT

Mr. Gurvinder Singh Gill, J.:- The petitioners have approached this Court challenging order dated 27.2.2019 passed by learned Judicial Magistrate 1st Class, Sonepat, Haryana, whereby the learned trial Court has held that the complainant, post the summoning of the accused, has a right to file a fresh affidavit towards his examination-in-chief, while turning down the objections raised by the accused in this regard.

2. A few facts, necessary to notice, are that the respondent had filed a complaint under Sections 138 and 141 of Negotiable Instrument Act, 1881 against the petitioners in the year 2010 before the Metropolitan Magistrate, Rohini Courts, Delhi on account of dishonour of a cheque bearing No.800210 dated 15.1.2010 for an amount of Rs.1 lac, wherein the complainant tendered his affidavit in preliminary evidence (annexed with the complaint as Annexure P-2). Vide order dated 5.4.2010 (Annexure P-3) passed by Metropolitan Magistrate, Rohini Courts, Delhi, the accused were summoned. Pursuant to summoning of the accused, the accused moved an application under Section 145(2) of Negotiable Instrument Act, 1881, which was accepted vide order dated 2.5.2012 (Annexure P-4) passed by Metropolitan Magistrate, Rohini Courts, Delhi. Subsequently, on account of the amendment in Negotiable Instrument Act, 1881 pertaining to territorial jurisdiction for entertainment of the complaint, the complaint was transferred to the Court of Chief Judicial Magistrate, Sonepat vide order dated 30.9.2015 (Annexure P-6) passed by Metropolitan Magistrate, Rohini Courts, Delhi.

3. Before the matter had been transferred to Sonepat, the complainant had filed an affidavit dated 14.7.2014 (Annexure P-7) towards his examination-inchief in the post summoning evidence. However, it appears that it was after the matter stood transferred to Sonepat that some objection was raised against tendering of the aforesaid affidavit by the complainant, which has been turned down by the learned trial Court vide impugned order dated 27.2.2019.

4. The learned counsel for the petitioner has submitted that the complainant cannot be permitted to re-open the case and cannot be permitted to file a fresh affidavit along with additional documents especially since the accused in their application filed under provisions of Section 145(2) of Negotiable Instrument Act, 1881 had already disclosed their defence. The learned counsel, in order to hammer forth his aforesaid submission, places reliance upon a judgment of Delhi High Court reported as 2010(4) R.C.R. (Criminal) 124 titled as Rajesh Agarwal Versus State and another.

5. I have heard the learned counsel for the petitioners.

6. Section 143 of Negotiable Instrument Act, 1881 prescribes that the offences under Sections 262 to 265 of Cr.P.C. are to be tried summarily and that the Magistrate is competent to impose punishment of imprisonment not exceeding one year. It is further provided therein that if at the commencement of the trial or in the course of a summary trial, it appears to the Magistrate that the nature of the case is such that a sentence of imprisonment exceeding one year may have to be passed or it is otherwise undesirable to try the case summarily, the Magistrate after hearing the parties may pass an order to this effect.

7. Section 143 of Negotiable Instrument Act, 1881 specifically states that provisions of Section 262 to 265 Cr.P.C. as far as may be applied to the trials under Negotiable Instrument Act, 1881.

8. Section 262 Cr.P.C. reads as follows:-

“262. Procedure for summary trials:-

(i) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned.

(ii) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.”

9. A perusal of the aforesaid Section shows that the procedure specified for the trial of summons case is to be followed for holding the summary tria