In a crucial ruling impacting cheque bounce cases, the Allahabad High Court, Lucknow Bench, has reaffirmed that witnesses in complaints under Section 138 of the Negotiable Instruments Act can submit evidence through affidavits, and it is not mandatory for the Magistrate to examine them on oath. The court dismissed a petition filed under Section 482 CrPC by the accused, challenging a summoning order and subsequent proceedings initiated against him.
Delivering the verdict, Justice Karunesh Singh Pawar emphasized that the Magistrate’s inquiry under Section 202 CrPC does not necessarily require the examination of witnesses on oath and that evidence can be submitted via affidavit, in accordance with Section 145 of the NI Act. The judgment aligns with the Supreme Court’s ruling in Suo Motu Writ Petition (Cri) No. 2 of 2020 and further solidifies the legal position on procedural aspects of cheque bounce cases.
Background of the Case
The case originated from a complaint filed under Section 138 of the NI Act against Bhagwati Sharana Dwivedi by a complainant, alleging that the accused had issued a cheque that was dishonored. The Additional Chief Judicial Magistrate, Court No. 2, Lakhimpur Kheri, after examining the complaint and the complainant’s statement under Section 200 CrPC, issued a summoning order on December 2, 2015. Subsequently, proceedings under Sections 82 and 83 CrPC were initiated against the accused on May 15, 2019.
The accused, represented by Advocates Chandan Srivastava and Yogesh Somvanshi, contended that the Magistrate erred in issuing the summoning order without conducting an inquiry under Section 202 CrPC, as mandated by the 2005 amendment to the Code of Criminal Procedure. They argued that since the accused resided outside the jurisdiction of the Magistrate, an inquiry was obligatory before issuing process.
Legal Issues Involved
Applicability of Section 202 CrPC in NI Act Cases:
The petitioner argued that the Magistrate failed to comply with the mandatory requirement of conducting an inquiry before issuing the summoning order, as per the 2005 amendment to Section 202 CrPC.
Whether Witnesses Must Be Examined on Oath in NI Act Cases:
The court examined whether the Magistrate must record statements of witnesses on oath under Section 202 CrPC or if evidence on affidavit under Section 145 of the NI Act suffices.
Impact of Supreme Court Precedents on Section 138 NI Act Complaints:
The High Court analyzed the Supreme Court’s judgment in Suo Motu Writ Petition (Cri) No. 2 of 2020, which clarified that an inquiry under Section 202 CrPC is not mandatory for cheque bounce cases if the complainant’s statement and documentary evidence provide sufficient grounds for proceedings.
Court’s Observations and Decision
Justice Karunesh Singh Pawar, after hearing Advocate Surya Prakash for the complainant and AGA Anurag Verma for the State, dismissed the petition, stating:
“Section 145 of the NI Act is an exception to Section 202 in respect of the examination of the complainant by way of an affidavit. There is no reason for insisting that the evidence of witnesses be taken on oath.”
The court relied on the Supreme Court’s verdict in Mandvi Cooperative Bank Limited v. Nimesh B. Thakore (2010) 3 SCC 83, which recognized that Sections 143 to 147 of the NI Act override general provisions of the CrPC to ensure an expedited trial process.
It further held that:
The complainant’s statement under Section 200 CrPC and supporting affidavit were sufficient for issuing process.
There was no legal bar on admitting witness affidavits instead of oral examination.
Section 202(2) CrPC does not apply to NI Act complaints, and a Magistrate can examine documents for satisfaction before issuing summons.
