NAHE E D ARA MOONIS, J. - (1.) HEARD the learned counsel for the applicant, leaned A.G.A. and perused the record.
(2.) THE prayer has been made for quashing the Complaint Case No. 1995 of 2010, under Section 138 of Negotiable Instruments Act, police station Brahampuri, district Meerut whereby the applicant has been summoned by order dated 14.12.2010 under Section 138 of Negotiable Instruments Act. The sole question raised by the learned counsel for the applicant is that while passing the summoning order the learned Magistrate has? fully relied upon the affidavit filed by the complainant and no statement was recorded under Section 200 Criminal Procedure Code, which is in clear violation to the dictum of the apex court in Maharaja Developers Vs. t/day Singh Pratap Singh Rao Bhonsle? 2007-C.L.C.-0-873 whereby the apex court has deprecated the prac tice of S T P L - Dishonour of C heque Judgements 13.1 [This product is licenced to keyur, ahmedabad, ahmedabad] the court below in summoning the applicant under Section'138 of Negotiable Instruments Act without recording the statements under Section 200 Criminal Procedure Code even though there is solemn affirmation by the complainant in his complaint. Paragraphs 27 and 28 of the aforesaid decision of the apex court is as follows; "(27)? From the above discussion, we are of the considered view that the non-obstante clause in Section 142 or 145 of the N.I. Act does not override the provisions of Section 200 of Cr.P.C. and it is mandatory for the Magistrate to examine the complainant who has filed the same under Sec tion 138 of the N.I. Act though with an affirmation as regards truthfulness of the contents of the complaint. It, therefore, follows that the Magistrate is obliged and duly bound to examine upon oath the complainant and his witnesses before issuance of process under Section 204 of Cr.P.C. through there is a solemn affirm at the foot of the complaint by the complainant. "(28).? The submission of the learned counsel for the respondent that is the Magistrates are required to record verification statement of the complainant, under Section 200 of Cr.P.C. in a complaint under Section 138 of N.I. Act, it would cause delay in disposing of the said complaint also cannot be accepted for the simple reason that the procedure laid down by law has to be followed and secondly it would not take much time if the verifi- cation statement of the complainant is recorded on the same day on which the complaint is filed or on the following day when the matter is fixed".
(3.) THEREFORE , in view of the aforesaid decision the court below has not followed the procedure of Section 138 N.I. Act while summoning the applicant under Section 138 N.I. Act by recording the statement of the complainant under Section 200 Criminal Procedure Code and of the witnesses under Section 202 Criminal Procedure Code, therefore, the order dated 14.12.2010 is hereby set aside with the direction that the court below shall pass appropriate order afresh after recording the statement of the complainant and the witnesses.;