[Section 138 NI Act] Accused can be summoned on the basis of affidavit by complainant: Allahabad High Court

The Allahabad High Court recently observed that in a complaint under Section 138 of the Negotiable Instruments (NI) Act 1881, an accused can be summoned on the basis of an affidavit by the complainant. [Virendra Kumar Sharma v. State of Uttar Pradesh and Another].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 (AIR 2021 SC 1957), 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 Code of Criminal Procedure."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 by one Virendra Kumar Sharma under Section 482 of the Code of Criminal Procedure (CrPC) seeking quashing of proceedings in a complaint case (Surendra Singh v. Virendra Kumar Sharma) under Section 138 of the NI Act, pending before the Additional Chief Judicial Magistrate in Varanasi.A cheque issued by the applicant in favour of the firm (one of the respondents) was dishonored and thereafter, notices on behalf of the firm were issued to the applicant for payment of the amount.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.It was the case of the applicant that the summoning order passed by the Additional Chief Judicial Magistrate against the applicant was bad in the eyes of law since no statement of the respondent-firm and witnesses was recorded under Sections 200 and 202 of CrPC.Additional Government Advocate appearing for the respondents argued that for passing of the summoning order under the Act, there is no requirement of recording statements under Sections 200 and 202 of the CrPC.It was submitted by the respondents that if, 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.After examining the summoning order issued against the applicant, the High Court took the view that a prima facie case is made out against the applicant.While referring to Section 145 (evidence on affidavit) of the NI Act, the Court noted that the evidence of the complainant may be given by him on affidavit, and recording statements is not required with regard to the summoning of accused under Section 138 of the NI Act.The Court observed that:"In the present case, from the perusal of the summoning order dated February 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 CrPC or 202 CrPC," the order said.The High Court thus found no illegality committed by the trial court while passing the summoning order against the applicant. It, therefore, dismissed the plea. Advocates Manoj Kumar Rai and KC Tripathi appeared for the applicant..[Read Judgment]