Decided on April 11,2016

K S JOSEPH Appellant
Philips Carbon Black Ltd Respondents


- (1.) By the common impugned order dated 04.09.2012 passed in Crl.M.C. Nos.2902 and 2903 of 2012 by the High Court of Kerala at Ernakulam under Section 482 of the Code of Criminal Procedure (for short, 'Cr. P.C.') prayer of the appellant to quash order of cognizance and issuance of summons in a case under Section 138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as 'the Act') has been rejected by a very short and summary order to the effect that submissions were not impressive and if the appellant has any sustainable ground of defence, he can canvass the same before the Magistrate.
(2.) The appellant is an accused in two cases of similar nature wherein cheques issued by the accused person in favour of the complainant have not been honoured. On behalf of appellant it was highlighted that the cheques bounced on 24.01.2006 because of a direction to stop payment issued by the appellant because he had allegedly already made all the required payments. His defence that five blank cheques had been given to the complainant by way of security cannot be considered at the present stage but he has raised three other legal grounds. Firstly, the complaint suffered from delay of 62/63 days and the same had to be condoned after notice but that was not done. The second grievance of the appellant is that cognizance could not have been taken without complying with the mandate of Section 200 of the Cr.P.C. and examining the complainant on solemn affirmation. The last submission of learned senior counsel for the complainant, Mr. K. Radhakrishnan is that the appellant being an accused and a resident of an area outside the territorial jurisdiction of the Magistrate who has issued summons, an enquiry within the meaning of Section 202 of the Cr.P.C. was mandatory and since that was not done, the order of cognizance and issuance of summons is bad in law.
(3.) So far as the issue of examination of complainant on solemn affirmation under Section 200 of the Cr.P.C. is concerned, the submissions are misconceived on account of Section 145 of the Act which was inserted along with some other Sections through an amendment in the year 2002 w.e.f. 06.02.2003. Section 145 of the Act is as follows : "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.";

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