138 ni act complaint produce in court without component is on record is lible

[dawood ibraihim]

dear sir ,

138 ni act complaint produce in court without component is on record is liable or not and only advocate signature produce complement without complement is liable or not ?

[Dr. Ashok Dhamija]

It is not possible to understand your question. Please make your question clear.     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

[dawood ibraihim]

dear sir ,
in act of 138 , if complainant is not appear in court only his signature on Complain his advocate produced in court his complain .court cognizance in 138 ni act and issue against accuse . this act is liable or not . there is any ruling on this fact ?

second matter , complainant and accuse bank is same .accuse account not debit dishonour of cheque charges or accuse account not show cheque is coming his account both also complainant account. in this fact what is effect on is case ?

[Dr. Ashok Dhamija]

Though your question is not fully clear, what I could gather is that the complainant in a case under Section 138 of Negotiable Instruments Act (cheque bounce case) did not appear in the court, but his advocate appeared and submitted his complaint which had the signature of the complainant, and the court has taken cognizance of the complaint and issued notice to the accused. Your question is whether it is permissible.

For this purpose, let me point out that, generally, for a private complaint of a criminal case, while taking cognizance, it is necessary for the Magistrate to examine the complainant on oath under Section 200 of Cr.P.C., subject to two exceptions mentioned under the Proviso therein. Summons are issued to accused after that.

However, for a cheque bounce case under Section 138 of N.I. Act, there is a special provision under Section 145 of that Act, which is reproduced below:

“145. Evidence on affidavit.—(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.”

Thus, this section states that “notwithstanding anything contained in Cr.P.C.” evidence of the complainant may be given by him on affidavit. Thus, despite the provisions of Section 200 of Cr.P.C., the evidence of the complainant may be given on affidavit. Therefore, in a cheque bounce case, it may not be necessary for the Magistrate to examine the complainant on oath before issuing notice / process to the accused. Process can be issued to the accused even if the complainant is not present in the court at the time of submission of his complaint by his advocate, provided his affidavit is on record.

This view has been fully supported by the Supreme Court in the case of A.C. Narayanan v. State of Maharashtra, (2014) 11 SCC 790 : AIR 2014 SC 630 : 2014 Cri LJ 576, by observing as under:

“29. From a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the complainant in support of the complaint. Once the complainant files an affidavit 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 NI 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 NI Act. It is only if and where the Magistrate, after considering the complaint under Section 138 of the NI 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 court and examine the complainant and/or his witness upon oath for taking a decision whether or not to issue process on the complaint under Section 138 of the NI Act.”

“33.4. In the light of Section 145 of the NI 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 NI 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 process on the complaint under Section 138 of the NI Act.”

Therefore, there is nothing legally wrong in the Magistrate issuing process to the accused on the basis of complaint signed by the complainant submitted by the advocate, provided his affidavit is also filed along with in support of the complaint. However, if the affidavit of the complainant was not on record, then the issue of process to the accused may be questionable.

What is mentioned above answers your first question. I am still not able to understand your second question. If you know Hindi and can type in Hindi, please do that, so that I could understand your second question.

     

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Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.

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