HC on NI Act: No illegality in summoning Accused relying on Complaint's Affidavit, Read Order

  

The Allahabad High Court has recently observed that in cases under Section-138 of the NI Act, the accused can be summoned even on the basis of affidavit filed on behalf of the complainant and that recording of statements under Sections 200 and 202 Cr.P.C isn't required.

The single-judge bench of Justice Sameer Jain was dealing with an appeal, wherein the appellant was seeking to quash the proceedings of complaint case, initiated against him under Section-138 of the NI Act.

It was the contention of the appellant that without recording the statements of opposite party and witnesses, under Sections 200 and 202 Cr.P.C, issuance of summoning order by the Magistrate was not valid and it was not the proper course to be followed in such cases.

He argued that the entire proceeding of the impugned complaint case, pending against the applicant, was bad in the eye of law in view of the non-compliance of sections 200 and 202 Cr.P.C.

The AGA on the other hand, holded the Magistrate view. He submitted that if, as per the trial court, a complaint discloses prima facie offence under Section 138 Negotiable Instruments Act, then the applicant/accused can be summoned and, therefore, there was no illegality in the summoning order passed against him.

Read also : SC: Offence under Sec.138 NI Act made out even if Debt liablity arises post drawing of Cheque [Read Judgement]

High Court Observations

The Court on the outset, from the perusal of the complaint, a prima facie case under Section 138 Negotiable Instruments Act is made out against the applicant.

It observed that in view of Section 145 of NI Act, the complainant may give his evidence on affidavit, and for the summoning of accused under Section 138 of NI 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. 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."

Referring to recent SC Order in Re.: Expeditious Trial of Cases Under Section 138 N.I. Act 1881,2021 Latest Caselaw 205 SC, the Court noted that there was no illegality committed by the learned trial court while passing the summoning order against the applicant and therefore dismissed the applicatio,

Read Order Here:
 

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