TMI Blog2014 (8) TMI 1213X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the drawee bank, notice issued by the complainant to the accused, documents showing receipt of the same by the accused and the initial statement in form of affidavit in support of the allegations made in the complaint. Learned Magistrate has duly considered the said materials on record in taking cognizance of the offence under Section 138 N.I. Act and directing issuance of process to the accused-petitioner. In A.C. Narayanan v. State of Maharashtra [ 2013 (9) TMI 948 - SUPREME COURT ], the Hon'ble Supreme Court while dealing with the question whether the proceeding contemplated under Section 200 Cr.P.C. can be dispensed with in the light of Section 145 of the N.I. Act, which was introduced by way of amendment in the year 2000, has observed that In the light of section 145 of N.I Act, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I Act and the Magistrate is neither mandatorily obliged to call upon the complainant to remain present before the Court, nor to examine the complainant of his witness upon oath for taking the decision whether or not to issue pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... furnished in the shape of an affidavit, the impugned cheque, Memorandum of the Bank and other relevant documents such as copy of legal notice, postal A/D etc. On careful scrutiny of all these documents and the sworn affidavit of the complainant clearly shows that prima facie material suggesting commission of an offence U/s.138 of the N.I. Act well exist in the case record. In such circumstances cognizance of the offence U/s.138 of the N.I. Act is taken as the materials available on record prima facie suggest the involvement of the accused Rajendra Kumar Sahoo in commission of such offence. The complainant is directed to file requisites within seven days for issuance of summons to the accused. Put up on the date fixed for appearance of the accused. 5. The question which falls for consideration in this case is whether in a proceeding under Section 138 N.I. Act, where the accused resides beyond the territorial jurisdiction of the concerned Magistrate, it is mandatory for the Magistrate to conduct an enquiry, as envisaged under Section 202(1) Cr.P.C., before issuing process to the accused. 6. The object of the provisions of Section 202 Cr.P.C. is to enable the learned Magistrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fidavit in support of the complaint before issuance of the process under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the complainant in support of his complaint. However, it is a matter of discretion and the Magistrate is not bound to call upon the complainant to remain present before the Court and to examine him upon oath for taking decision whether or not to issue process on the complaint under Section 138 of the N.I. Act. For the purpose of issuing process under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of affidavit filed by the complainant in support of the complaint under Section 138 of the N.I. Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the N.I. Act, documents produced in support thereof and the verification in the form of affidavit of the complainant, is of the view that examination of the complainant or his witness(s) is required, the Magistrate may call upon the complainant to remain present before the Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he complainant is to be recalled. Such an order is to be passed on an application made by the accused or under Section 145(2) of the Act suo motu by the court. In summary trial, after the accused is summoned, his plea is to be recorded under Section 263(g) CrPC and his examination, if any, can be done by a Magistrate and a finding can be given by the court under Section 263(h) CrPC and the same procedure can be followed by a Magistrate for offence of dishonour of cheque since offence under Section 138 of the Act is a document based offence. We make it clear that if provisos (a), (b) (c) to Section 138 of the Act are shown to have been complied with, technically the commission of the offence stands completed and it is for the accused to show that no offence could have been committed by him for specific reasons and defences. 11. Considering the decisions of various High Courts of the country, which have laid down certain procedure for speedy disposal of the cases under Section 138 N.I. Act, the Hon'ble Court found that many of the directions given by the various High Courts are worthy of emulation by the criminal courts all over the country dealing with cases under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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