Allahabad High Court: Sameer Jain, J., decided that whether for summoning an accused under Section 138 of Negotiable Instruments Act, 1881, recording of statements under Section 200 and 202 of CrPC is required or not.
Instant application was filed under Section 482 CrPC to quash the proceedings of complaint case under Section 138 of the Negotiable Instruments Act pending before the IInd Chief Judicial Magistrate, Varanasi.
Applicant was summoned under Section 138 of the Negotiable Instruments Act.
A perusal of the summoning order showed that cheque issued by the applicant in favour of the Firm of OP 2 was dishonoured and thereafter, notices on behalf of OP. were given to the applicant for payment of the cheque amount but inspite of that, no payment was made. Ultimately OP 2 filed a complaint under Section 138 NI Act against the applicant.
As per Section 145(1) of the Negotiable Instruments Act, the evidence of the complainant may be given by him on affidavit, and for the summoning of accused under Section 138 NI Act, recording of statements under Sections 200 and 202 CrPC was not required.
It was noted in the present matter that, from the perusal of the summoning order, it was apparent that while passing the order, Magistrate perused the complaint as well as an affidavit in support of the complaint filed by OP 2 and other documents including cheque, etc. and therefore, in view of provisions of Section 145 (i) NI Act, it could not be said that trial court committed an error while summoning the applicant as there was no need to record the statements either under Sections 200 CrPC or 202 CrPC.
High Court relied on the Supreme Court decision of Expeditious Trial of Cases under Section 138 NI Act, 1881, In Re., AIR 2021 SC 1957, and stated that even on the basis of affidavit filed on behalf of the complainant, an accused can be summoned under Section 138 NI Act and there was no need to record statements under Sections 200 and 202 CrPC.
Therefore, no illegality was committed by the trial court while passing the summoning order against the applicant. [Virender Kumar Sharma v. State of U.P., 2021 SCC OnLine All 874, decided on 8-12-2021]
Advocates before the Court:
Applicant’s Counsel: Manoj Kumar Rai, K.C. Tripathi
OP’s Counsel: Govt. Advocate