The Kerala High Court held that the complainant need not be present for the court to take cognizance of the offence under section 138 of the Negotiable Instruments Act, 1881, provided that the complaintalong with the affidavit and all other documents are in order before the court. The Court observed section 145 of the act, that was introduced by Negotiable Instruments (Amendment and Miscellaneous Provisions) Act, 2002, and the statement of Objects and Reasons of the Act. The Court placed reliance on two Supreme Court Cases—RadheyShyam Garg v. Naresh Kumar Gupta [(2009) 13 SCC 201], and Indian Bank Association and others v. Union of India and others [(2014) 5 SCC 590], to ascertain the essence of section 145 of the act.
The Court held that the legislature introduction the section for speedy disposal of cases based on the preliminary evidence of the complainant. Hence, it was crystal clear that the rationale behind the section did not mandate the presence of the complainant for taking cognizance of the offence under section 138 of the Act.
Hence, the absence of complainant is no ground for justifying the dismissal of complaints in relation to offences under section 138 of the NI Act. The Court said that there was no requirement of the complainant’s presence when the complaint along with the affidavit and other necessary documents are in order. Setting aside the orders of the Chief Judicial Magistrate, the court directed the CJM to continue the proceedings in compliance with the law. Further, the High Court directed the complainant to appear before the Magistrate and put the proceedings in a stage prior to their dismissal.
Courtesy/By: Sandeep G
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01 Mar 2019
