Personal Appearance of Complainant not Required to take Cognizance of Offence u/S 138 of NI Act

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March 01, 2019

In this recent case, the High Court of Kerala was confronted with the issue whether the personal appearance of the complainant is necessary for taking cognizance of the offence under Section 138 of the Negotiable Instrument Act, 1881?

Case name: Areeplavan Finance v. State of Kerala & anr.

In the instant case, the Lower Court dismissed the Petition for the sole reason that the complainant did not appear in person before the Court.

The High Court of Kerala in view of the law prevailing on the subject and precedents set aside Lower Court’s order and made the following observations in the case:

That in view of the clear provisions of Section 145 of Negotiable Instrument Act, if the complainant files affidavit, the presence of the complainant must not be insisted upon before taking cognizance by the court. Here it would be relevant to mention that Section 145 of NI Act provides for the evidence of the complainant to be given on affidavit.

The High Court while referring to the statutory provision under Section 145 of NI Act noted that it is clear from statement of objects and reasons that Section 145 of the NI Act was introduced for dispensing with the preliminary evidence of the complainant and for the speedy disposal of the cases.

While expounding the law on subject, the Court also made reference to Apex Court’s judgment in the case of Radhey Shyam Garg v. Naresh Kumar Gupta[1], wherein the Court remarked that If an affidavit in terms of the provisions of Section 145 of the Act is to be considered to be an evidence, it is difficult to comprehend as to why the court will ask the deponent of the said affidavit to examine himself with regard to the contents thereof once over again.

The High Court thus held in the case that the under Section 145 of the Act, the complainant can give his evidence by way of an affidavit and such affidavit shall be read in evidence in any inquiry, trial or other proceedings in the court, which makes it clear that a complainant is not required to examine himself twice i.e., one after filing the complaint and one after summoning of the accused.

 

[1] (2009) 13 SCC 201