The Kerala High Court has held that the presence of the complainant is not necessary to take cognizance of a cheque bouncing case under Section 138 of the Negotiable Instruments Act, 1881,if the complaint is accompanied by an affidavit and all necessary documents are in order.
The court first examined Section 145 of the NI Act, which was introduced via the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, as well as the Statement of Objects and Reasons provided in the amendment. It held that "Section 145 of the NI Act was introduced for dispensing with the preliminary evidence of the complainant and for the speedy disposal of the cases".
After examining the statutory position, the court then examined two Supreme Court judgments on the scope and purpose of Section 145: Radhey Shyam Garg v. Naresh Kumar Gupta [(2009) 13 SCC 201], and Indian Bank Association and others v. Union of India and others [(2014) 5 SCC 590].
Justice B Sudheendra Kumar held that it is "abundantly clear from the object of enactment of Section 145 of the N.I. Act and the ratio laid down by the Apex Court that the personal appearance of the complainant is not necessary for taking cognizance of the offence.
"Therefore, the courts dealing with the cases under Section 138 of the N.I. Act shall not insist for the personal appearance of the complainant at the pre-cognizance stage if the complaint is accompanied by the affidavit of the complainant and the affidavit and the documents, if any, are found to be in order. This being the position, the dismissal of the complaints by the court below before taking cognizance on the reason that the complainant was not present in person before the court cannot be justified".
The court then set aside the two orders of the Chief Judicial Magistrate and directed the magistrate to proceed with the case in accordance with law. The court also directed the complainant to appear before the court and relegated the proceedings of the cases to the stage prior to their dismissal.