Cheque dishonour complaint: disputed factual defences and pre-summoning affidavit evidence could not defeat process under NI Act.
In a cheque dishonour complaint, disputed defences such as denial of loan, alleged misuse of a blank cheque, and stop-payment instructions could not be resolved in proceedings under Section 482 CrPC and had to be tested at trial. The Court also held that, at the pre-summoning stage, the Magistrate could proceed on the complainant's affidavit under Section 145 of the Negotiable Instruments Act, and that personal tendering of the affidavit was not indispensable. The summoning order was therefore upheld and the prosecution was allowed to continue.
Issues: (i) Whether the complaint was liable to be quashed on the ground that the defence raised by the accused involved disputed questions of fact; (ii) Whether the summoning order was vitiated for want of pre-summoning evidence under Section 200 of the Code of Criminal Procedure, 1973 and for non-tendering of the complainant's affidavit.
Issue (i): Whether the complaint was liable to be quashed on the ground that the defence raised by the accused involved disputed questions of fact.
Analysis: The defence relating to absence of loan transaction, alleged misuse of a blank cheque, and stop-payment instructions raised factual controversies that could not be resolved in proceedings under Section 482 of the Code of Criminal Procedure, 1973. Such matters required trial and evidence before the Magistrate.
Conclusion: The plea was rejected and the complaint was allowed to proceed.
Issue (ii): Whether the summoning order was vitiated for want of pre-summoning evidence under Section 200 of the Code of Criminal Procedure, 1973 and for non-tendering of the complainant's affidavit.
Analysis: The order showed that the complainant was present and that evidence by affidavit had been filed, after which the Magistrate closed pre-summoning evidence, heard arguments, and issued process. The Court held that proceedings before issuance of process amount to an inquiry, that the statement recorded under Section 200 can constitute evidence, and that Section 145 of the Negotiable Instruments Act, 1881 permits the Magistrate to act on an affidavit at that stage. Personal tendering of the affidavit was not indispensable.
Conclusion: The summoning order was upheld.
Final Conclusion: The petition challenging the summoning order failed, and the prosecution under the Negotiable Instruments Act was permitted to continue before the trial court.
Ratio Decidendi: In a complaint under Section 138 of the Negotiable Instruments Act, 1881, the Magistrate may act on an affidavit filed under Section 145 at the pre-summoning stage, and proceedings under Section 200 of the Code of Criminal Procedure, 1973 constitute an inquiry for issuing process.
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AI Drafter ✕
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