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TMI Blog2016 (4) TMI 613X X X X Extracts X X X X X X X X Extracts X X X X ..... sh 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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." 4. The non obstante clause in sub-section (1) of Section 145 is self-explanatory and over-rules the requirement of examination of the complainant on solemn affirmation under Section 200 of the Cr.P.C. Now the complainant is entitled to give his evidence on affidavit and subject to all just exceptions, the same has to be read in evidence in any enquiry, trial or other proceeding under the Cr.P.C. This view is also supported by the judgment of this Court in the case of Mandavi Cooperative Bank Ltd. v. Nimesh B. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been shown that initially summons were ordered to be issued to the accused on 05.12.2006 after recording a single sentence that the complainant was represented. Since proper steps were not taken summons appear to have been re-issued at the correct address on 22.10.2011. The orders of the Magistrate do not show any application of mind to the issue of delay nor has delay been condoned before issuance of summons. The Order Sheet does not show any application of mind to the fact that the accused was shown to be residing at a place beyond his jurisdiction and therefore an enquiry or investigation may be required on account of amendment in Section 202 of the Cr.P.C. inserted by the Act 25 of 2005, effective from 23.06.2006. The relevant part of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008) 13 SCC 229 to support his submission that for condoning delay in filing complaint beyond the period of limitation, natural justice warrants notice to the accused so as to grant him an opportunity to show that the delay should not be condoned. 9. Learned senior counsel for the appellant has also placed reliance upon a judgment of this Court in the case of Vijay Dhanuka v. Najima Mamtaj (2014) 14 SCC 638 to support his submission based upon requirement of Section 202 of the Cr.P.C. warranting an enquiry or investigation where the accused is found to be residing outside the jurisdiction of the Magistrate. 10. Learned counsel for the respondent-complainant could not place any material to counter the two submissions noted above. We have ..... X X X X Extracts X X X X X X X X Extracts X X X X
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