SANJEEV KASHYAP Vs. SACHIN MOHAN

JUDGEMENT

(1.) BY way of this Criminal Miscellaneous Application, prayer has been made to quash the cognizance order dated 20.1.2007, passed by the Judicial Magistrate, Hardwar in Complaint Case No. 612/2007 (Old No. 2507/2006), Sachin Mohan v. Sanjeev Kashyap, under Section 138 of the Negotiable Instruments Act, 1881.

(2.) HAVING heard learned Counsel for the parties, it appears that Sachin Mohan filed a complaint against the applicant Sanjeev Kashyap for default of payment of a cheque worth rupees one lakh. The said cheque was dishonoured by the bank because of lack of sufficient funds in the account of the drawer of the cheque. Respondent Sachin Mohan gave a notice to the applicant as required under Section 138(b) of the Negotiable Instruments Act. When the payment was not made within the stipulated period, he filed the said complainant on 10.11.2006.

(3.) THE applicant Sanjeev Kashyap has challenged the validity of the affidavit, which was filed by the complainant under Section 200 Code of Criminal Procedure at the time of filing the complaint itself. This affidavit was drafted and signed by the deponent Sachin Mohan on 10.11.2006. But strangely enough, it was sworn in on 9.11.2006, as is written at the end of the averments made in the said affidavit. Thus, the affidavit was sworn in a day before filing of the said complaint. Though the provisions contained under Section 145 of the Negotiable Instruments Act permit the complainant to give his evidence by way of affidavit, but the same do not allow the complainant/deponent to swear the affidavit one day prior to its drafting and also putting in his signatures therein. Such a document is not at all admissible in evidence under Section 200 Code of Criminal Procedure, rather it indicates towards the malpractice complete unmindfulness of the Oath Commissioner, who has put in his signatures in the said affidavit verifying the swearing of the deponent Sachin Mohan. Therefore, the impugned cognizance order, which is based on the said affidavit, is vitiated and cannot be allowed to sustain.