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A.F.R.

Court No. - 93

Case :- APPLICATION U/S 482 No. - 14051 of 2008

Applicant :- Virendra Kumar Sharma

Opposite Party :- State of U.P. and Another

Counsel for Applicant :- Manoj Kumar Rai,K.C. Tripathi

Counsel for Opposite Party :- Govt. Advocate

Hon'ble Sameer Jain,J.

Case called out in the revised list. Despite service of notice,

none appeared on behalf of the opposite party No. 2.

Heard Sri Manoj Kumar Rai, learned counsel for the

applicant, learned AGA for the State-respondent and

perused the record.

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.

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.

Except this, no other argument was advanced on behalf of

the applicant.

Per contra, learned AGA contended that for passing the

summoning order under Section 138 Negotiable

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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 .

The present matter relates to Negotiable Instruments Act

and on 2.2.2008, applicant was summoned under Section

138 Negotiable Instruments Act.

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.

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.

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

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Negotiable Instruments Act, recording of statements under

Sections 200 and 202 Cr.P.C., is not required.

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. an