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Accused can be summoned on the basis of affidavit by the complainant: Allahabad High Court

Accused can be summoned on the basis of affidavit by the complainant: Allahabad High Court

By – Aishwarya

Single-judge Justice Sameer Jain placed reliance on the Constitution Bench judgment of the Supreme Court in In Re.: Expeditious Trial of Cases Under Section 138 NI Act 1881, and on Section 145 of the NI Act to hold that even on the basis of affidavit filed on behalf of the complainant, an accused can be summoned under Section 138 and there is no need to record statements under Sections 200 and 202 of the CPC.

“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 Negotiable Instruments Act, recording of statements under Sections 200 and 202 CrPC, is not required,” the Court ruled.

The Court was hearing an application moved under Section 482 of CrPC seeking quashing of proceedings in a complaint case under Section 138 of the NI Act.

Despite the same, no payment was made by the applicant to the firm. The respondent-firm then filed a complaint under Section 138 of the NI Act 1881. According to the trial court, the complaint discloses a prima facie offence under Section 138 of the NI Act, then the applicant/accused can be summoned.

The Court observed that:

“In the present case, 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 summoning the applicant as there was no need to record the statements either under Sections 200 or 202 (CrPC),” the order said. It, therefore, dismissed the plea.

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