Please note that the Negotiable Instruments Act, 1881, contains the following important provision in Section 145, which is as under:
“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.”
Section 145 of the N.I. Act starts with a non-obstante clause, i.e., “Notwithstanding anything contained in the Code of Criminal Procedure…”. With regard to this, in the case of K.S Joseph v. Philips Carbon Black Ltd., (2016) 11 SCC 105 : AIR 2016 SC 2149, the Supreme has held that this non-obstante clause in sub-section (1) of Section 145 is self-explanatory and overrules the requirement of examination of the complainant on solemn affirmation under Section 200 Cr.P.C. The Supreme Court held that the complainant in a cheque bounce case is entitled to give his evidence on affidavit and subject to all just exceptions, the same has to be read in evidence in any enquiry, trial or other proceeding under Cr.P.C.
In view of the above reasons, there is no need for the magistrate to first record the statement of the complainant on oath in a cheque bounce case under Section 200 Cr.P.C. at the time of taking cognizance of such case. The complainant’s evidence can be obtained in the form of affidavit, as mentioned above.
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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