Cheque-Dishonour and Law on the Procedure before Summoning Accused under S.138 of Negotiable Instruments Act, 1881
The procedure before issuing summons to accused in cases under S.138 of Negotiable Instruments Act, 1881 was clarified in Rajesh Bhalchandra Chalke v. State of Maharashtra [2010] GCtR 2940 (Bombay). Important principles were enunciated.
For the purpose of issuing process under Section 200 of the Code of Criminal Procedure, 1973, 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 Negotiable Instruments Act, 1881 and the Magistrate is not obliged to call upon the complainant to remain present before the Court, nor to examine the complainant or his witnesses upon oath for taking the decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881.
It is only if and where the Magistrate, after considering the complaint under Section 138 of the Negotiable Instruments Act, 1881 and the 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 is required, that 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 decision whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881.
There is nothing wrong in the complainant under Section 138 of the Negotiable Instruments Act, 1881 filing the affidavit in support of the complaint in a format indicating all the essential facts satisfying the ingredients of Section 138 of the Negotiable Instruments Act, 1881 for the purpose of enabling the Magistrate to decide whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act, 1881.
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