Advocates:
['DEENDAYAL KHANDELWAL', 'P P', '', 'NEERAJ SHARMA']

1

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JAIPUR BENCH, JAIPUR

S.B. Criminal Misc. Petition No. 285/2010

Rakesh Sharma

Versus

State of Rajastan and another

Date of Order :: 2^nd April, 2010

HON'BLE MR. JUSTICE M.N. BHANDARI

Mr.Deendayal Khandelwal for petitioner.

Mr.Laxman Meea PP for State.

Mr.Neeraj Sharma for respondent.

Mr.V.R.Bajwa

]

Mr.Ashok Gaur

]

Mr.Pankaj Gupta ] Advocates assisting the Court.

*****

BY THE COURT:

REPORTABLE

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 & 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.

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 Versus State of

Rajasthan and another reported in 2009 (3) WLC (Raj.)

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766. 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.

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

Versus Naresh Kumar Gupta reported in 2009 Cr.L.R.

4

(SC) 546, which has not been noticed in Prakash Chand's

case.

Learned counsel Mr. Pankaj Gupta submits that issu