DANTULURI VENKATARAMARAJU Vs. KATTA NARAYAAN RAO

JUDGEMENT

(1.) The short question that arises for consideration in this petition under Section 482 Cr.P.C., is as to whether on an application filed by the accused under sub-section (2) of Section 145 of the Negotiable Instruments Act, 1881 the Court is obliged to examine the complainant-in-chief even in respect of matters which have been stated by him on affidavit in spite of mandate of Section 145(1)?

(2.) The facts in nutshell which give rise to the controversy are as under: In the proceedings initiated under Section 138 of the Negotiable Instruments Act, 1881 (for short "the Act") in CC No.391/2003 on the file of II Additional Chief Metropolitan Magistrate, Visakhapatnam, the petitioner-accused filed petition in DDR No.l0385/2005 to examine the complainant-in-chief who filed an affidavit under Section 145(1) of the Act. The learned Magistrate by the impugned order dated 29-11-2005 dismissed the said petition. On such dismissal, the petitioner moved this Court under Section 482 Cr.P.C., for quashing the said order and for directing the Magistrate to summon and examine the first respondent-complainant-in-chief in respect of the matters which have been stated by him in his affidavit filed in lieu of chief-examination.

(3.) Learned Counsel for the petitioner would strenuously urge that once accused files petition under sub-section (2) of Section 145, the Court has no option except to summon and examine the complainant in respect of the matters which have been stated in the affidavit. He would further contend that the main object while carrying out amendment to the Act through the Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002 (Act No.55 of 2002) is only to prescribe the procedure dispensing with the preliminary evidence of the complainant but not with regard to substantial evidence, which he has to lead during the course of trial. In view of the same, learned Magistrate committed a manifest illegality in dismissing the petition filed for summoning the complainant and to examine him in Court as to the facts contained in the affidavit.