RADHEY SHYAM GARG Vs. NARESH KUMAR GUPTA

JUDGEMENT

(1.) THE petitioner challenges the order dated 14. 3. 2008 passed by the learned metropolitan Magistrate, Delhi whereby the learned Magistrate has dismissed the application under Section 145 (2) of the Negotiable Instruments Act (the Act)filed by the petitioner/accused, praying that the complainant, who has filed his evidence on affidavit, may be summoned to examine him as to the facts contained therein. Section 145 of the Act reads as follows:

(2.) LEARNED Magistrate has rejected the application on the ground that the phrase 'any person' mentioned in the subsection (2) of Section 145 does not include the complainant, because the complainant has been specifically mentioned in subsection (1) thereof, but there is no such mention in subsection (2 ). His reasoning is that if the complainant is to be included in the phrase 'any person' occurring in sub-Section (2) of Section 145 of the Act, then the purpose of allowing the complainant to file evidence on affidavit would be defeated. In each and every case, he observes, the accused will move an application to get the complainant examined just to delay the matter. Learned Magistrate has also referred to Section 296 of the Cr. P. C. (the Code) which employs some what similar language as is employed in Section 145 of the Act. The same reads as follow:

(3.) THE Magistrate refers to the decision of the Supreme Court in State of Punjab vs. Naib Din 2002 SCC (Cri) 33 and relies upon the same to arrive at his decision.