Manoj Misra, J. - (1.) HEARD Mr. B.D. Mandhyan, learned Senior Counsel assisted by Mr. J.S. Chauhan, Advocate for the petitioner, Mr. Ayank Mishra, Advocate for the respondent No. 2; and learned A.G.A. for the State. The facts giving rise to the present petition are that a complaint, under Section 138 of the Negotiable Instruments Act, was filed by the petitioner against the respondent No. 2 with regards to dishonour of four cheques. On this complaint the Third Additional Chief Judicial Magistrate, Gautam Budh Nagar summoned the respondent No. 2, by its order dated 16.1.2010. Challenging the summoning order dated 16.1.2010 the respondent No. 2 filed Criminal Revision No. 65 of 2010, which was allowed by order dated 2.5.2011 and the summoning order dated 16.1.2010 was set aside. The revisional Court set aside the summoning order only on the ground that the statement of the complainant was not recorded in Court but was submitted by way of an affidavit, therefore, there was violation of the provisions of Section 200, Cr.P.C. and, as such, the issuance of process was bad in law.
(2.) CHALLENGING the order dated 2.5.2011, Mr. B.D. Mandhyan, learned Senior Counsel appearing for the petitioner (the complainant) submitted that Section 145 of the Negotiable Instruments Act provides that the evidence of the complainant may be given by him on affidavit. It has been submitted that Section 145 of the Negotiable Instruments Act is a special provision and would be operative notwithstanding anything contained in the Code of Criminal Procedure. In support of his contention, Mr. B.D. Mandhyan placed reliance on a decision of the Apex Court in the Case of Mandvi Cooperative Bank Limited v. Nimesh B. Thakore, : (2010) SLT 133 : I (2010) BC 600 (SC) : I (2010) DLT (Crl.) 150 (SC) : I (2010) CCR 215 (SC) : (2010) 3 SCC 83, where the Hon'ble Apex Court relying on the provisions of Section 145 of the Negotiable Instruments Act was of the view that the complainant's statement -in -chief could be on affidavit although it is open to call him for cross -examination in exercise of power under Sub -section (2) of Section 145.
(3.) IN view of the decision of the Apex Court, the order passed by the revisional Court is rendered vulnerable.;