DAULATSINGH Vs. SHYAMSUNDER

JUDGEMENT

(1.) In all these cases, a common question of law has been raised by the petitioners, i.e whether cognizance of an offence under Section 138 of the Negotiable Instruments Act, (hereinafter referred to as the Act) can be taken only on the basis of an affidavit filed alongwith the complaint by taking recourse to Section 145(1) of the Act, which was incorporated by the Amendment Act, 2002, despite existence of the provisions under Section 200 Cr.P.C. which requires evidence of the complainant and his witnesses to be recorded before issuing the process.

(2.) This question has come up before this Court even earlier in the case of M/s Nobel Packaging, Peethampur, district Dhar Vs. M/s Plasto Pack, Indore. This Court while deciding a bunck of petitions in M.Cr.C.No.3772/2011 having relied upon amending provisions of the Act including Sections 143 and 145 thereof and having taken note of the judgment of the Hon'ble Supreme Court in the case of Mandvi Co-operative Bank Limited Vs. Nimesh B.Thakore, 2010 3 SCC 83 and Full Bench judgment of the Bombay High Court held:-

(3.) On behalf of the petitioners it has been submitted that in view of the language of Section 200 Cr.P.C., cognizance cannot be taken of the offence on a complaint under Section 138 of the Act before examining the complainant and his witnesses on oath, even after the amendment carried out in the Act by incorporating Section 145 thereof. They relied upon a judgment of the learned Single Judge of this Court delivered in the case of Banshilal Vs. Abdul Munnar, 2010 1 MPLJ 644.