Affidavit evidence in cheque bounce complaints may support issuance of process without mandatory pre-process oral examination.

In complaints under Section 138 of the Negotiable Instruments Act, the Magistrate is not required in every case to personally examine the complainant on oath under Section 200 CrPC before issuing process. Section 145, introduced with a non obstante clause, permits evidence on affidavit and reflects a legislative intent to speed up complaint proceedings and avoid unnecessary preliminary examination. The Magistrate may rely on the complaint, supporting documents and affidavit, while retaining discretion to call the complainant or witnesses for oral examination if necessary.

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Issues: Whether, in a complaint under Section 138 of the Negotiable Instruments Act, 1881, the Magistrate is bound to personally examine the complainant on oath under Section 200 of the Code of Criminal Procedure, 1973 before issuing process, or may rely on the complaint, supporting documents and affidavit filed under Section 145 of the Negotiable Instruments Act, 1881.

Analysis: Section 145 of the Negotiable Instruments Act, 1881 begins with a non obstante clause and permits the complainant's evidence to be given on affidavit in any enquiry, trial or other proceeding under the Code of Criminal Procedure, 1973. The provision was inserted to dispense with preliminary evidence and to make the procedure for complaints under Section 138 expeditious. The scheme of Sections 142 to 147 of the Negotiable Instruments Act, 1881, together with the statutory presumptions under Sections 118, 139 and 146, shows a legislative intent to simplify the process and avoid the delay caused by insisting on personal examination in every case. The Magistrate retains discretion to call the complainant or witness for examination if considered necessary, but such oral examination is not mandatory in each complaint before issuance of process.

Conclusion: The Magistrate is not obliged, in every complaint under Section 138 of the Negotiable Instruments Act, 1881, to examine the complainant or his witnesses on oath before issuing process, and may rely on the affidavit and accompanying material filed with the complaint.

Ratio Decidendi: Where a special statute expressly permits affidavit evidence and contains a non obstante clause, the Magistrate may issue process on the basis of the complaint, documents and affidavit without mandatory pre-process oral examination, unless the Magistrate considers such examination necessary.

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