Point of law : Section 145 of NI Act provides that the evidence of the complainant may be given by him on affidavit, which shall be read in evidence in any inquiry, trial or other proceeding, notwithstanding anything contained in the Code. Section 145 (2) of the Act enables the court to summon and examine any person giving evidence on affidavit as to the facts contained therein, on an application of the prosecution or the accused.

JUDGMENT :

SAMEER JAIN, J.

1. Case called out in the revised list. Despite service of notice, none appeared on behalf of the opposite party no. 2.

2. Heard Sri. Manoj Kumar Rai, learned counsel for the applicant, learned AGA for the State-respondent and perused the record.

3. The present application u/s 482 Cr.P.C. has been filed by the applicant to quash the proceedings of Complaint Case No. 1690 of 2007 (Surendra Singh vs. Virendra Kumar Sharma), under Section 138 Negotiable Instruments Act, P.S. Bhelpur, District Varanasi pending before IInd Chief Judicial Magistrate, Varanasi.

4. Learned counsel for the applicant, at the very outset, contended that he is challenging the proceeding pending against the applicant only on the sole ground that without recording the statements of opposite party No. 2 and witnesses, under sections 200 and 202 Cr.P.C. summoning order dated 2.2.2008 was passed by the learned Additional Chief Judicial Magistrate, Court No. 2, Varanasi against the applicant, therefore, entire proceeding of the impugned complaint case, pending against the applicant, is bad in the eye of law.

5. Except this, no other argument was advanced on behalf of the applicant.

6. Per contra, learned AGA contended that for passing the summoning order under Section 138 Negotiable Instruments Act, there is no requirement of recording of the statements under Sections 200 and 202 Cr.P.C. and if as per the trial court, complaint discloses prima facie offence under Section 138 Negotiable Instruments Act then applicant/accused can be summoned and, therefore, there is no illegality in the summoning order and the present applicant u/s 482 Cr.P.C. is liable to be rejected.

7. The present matter relates to Negotiable Instruments Act and on 2.2.2008, applicant was summoned under Section 138 Negotiable Instruments Act.

8. Perusal of the summoning order dated 2.2.2008 shows that cheque issued by the applicant in favour of the Firm of opposite party No. 2 was dishonoured and thereafter, notices on behalf of opposite party no. 2 were given to the applicant for payment of the cheque amount but inspite of that, no payment was made then ultimately opposite party No. 2 filed complaint of the present case, under Section 138 Negotiable Instruments Act against the applicant. Therefore, from the perusal of the complaint, a prima facie case under Section 138 Negotiable Instruments Act is made out against the applicant.

9. Further, Section 145 of the Negotiable Instruments Act, 1881, which was introduced by the Parliament by Act No. 55 of 2002 (w.e.f. 6.2.2003), states as follows:

145. Evidence on affidavit:

(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.

10. Thus, as per Section 145(1) of the Negotiable Instruments Act, the evidence of complainant may be given by him on affidavit, and for summoning of accused under Section 138 Negotiable Instruments Act, recording of statements under Sections 200 and 202 Cr.P.C. is not required.

11. In the present case, from the perusal of the summoning order dated 2.2.2008, it is apparent that while passing this order, learned Magistrate perused the complaint as well as affidavit filed in support of the complaint filed by opposite party no. 2 and other documents including cheque etc. and therefore, in view of the Provisions of Section 145 (i) Negotiable Instruments Act, it cannot be said that learned trial court committed any error while summoning the applicant as there was no need to record the statements either under Sections 200 Cr.P.C. or 202 Cr.P.C.

12. Recently, Constitution Bench of Hon'ble Supreme Court In Re: