Complaint U/S 138 NI Act- "Accused Can Be Summoned Even On The Basis Of Affidavit Filed By Complainant": Allahabad HC

The Allahabad High Court on Wednesday observed that in a cheque bounce case for insufficient funds (Section 138 Negotiable Instruments Act), even on the basis of affidavit filed on behalf of the complainant, an accused can be summoned by the Court.

The Bench of Justice Sameer Jain further held that in such cases, there is no need for the Magistrate to record statements of witnesses under Sections 200 and 202 Cr.P.C. and that there won't be any illegality if the accused is summoned on the basis of an affidavit filed on behalf of the complainant.

It may be noted that recently, the Supreme Court in Sunil Todi vs State of Gujarat LL 2021 SC 706 reiterated that the Section 202(2) CrPC is inapplicable to complaints under Section 138 in respect of the examination of witnesses on oath.

Case in brief

Essentially, the Allahabad High Court was dealing with a 482 Plea filed by the applicant, one Virendra Kumar Sharma seeking quashing of the proceedings of a cheque bounce complaint case against him, wherein he was summoned by IInd Chief Judicial Magistrate, Varanasi as an accused.

It was the specific plea of the applicant that without recording the statements of opposite party No. 2 and witnesses, under sections 200 and 202 Cr.P.C., a summoning order was passed by the Additional Chief Judicial Magistrate against him and that it was not the proper course to be followed in such cases.

Therefore, it was 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.

On the other hand, the AGA contended that for passing the summoning order under Section 138 Negotiable Instruments Act, there is no requirement of recording of the statements under Sections 200 and 202 Cr.P.C.

It was specifically argued by the AGA 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.

Court's observations

The Court, at the outset, perused the complaint and found that a prima facie case under Section 138 Negotiable Instruments Act was made out against the applicant.

Further, the Court 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 this regard, the Court also referred to the recent ruling of the Constitution Bench of Supreme Court in Re.: Expeditious Trial of Cases Under Section 138 N.I. Act 1881 reported in [LL 2021 SC 217], to hold thus:

"...even on the basis of affidavit filed on behalf of the complainant, an accused can be summoned under Section 138 Negotiable Instruments Act and there is no need to record statements under Sections 200 and 202 Cr.P.C"

In view of this, concluding that there is no illegality committed by the trial court while passing the summoning order against the applicant, the Court dismissed the application.

Case title - Virendra Kumar Sharma v. State of U.P. and Another

Click Here To Download Order

Read Order