MADURAI: Lower courts cannot issue summons to the accused in cheque bounce cases, under the Negotiable Instruments Act, without recording oral statements of the complainant and witnesses under Section 200 and 202 of the Criminal Procedure Code, the Madras High Court has ruled.
Disposing of a petition filed before the Madurai Bench, Justice S. Nagamuthu said: “Issuing of summons has got its own legal consequences. It is not a formal act but a very serious judicial act. Hence, I am of the view that courts of law cannot dispense with recording of statements as the same would offend the legislative intent.”
The Judge disagreed with the decisions rendered by other High Courts that summons could be issued based on affidavits filed by complainants. “In my considered opinion, with great respect to the honourable Judges of Karnataka, Orissa and Bombay High Courts, the findings rendered (by them) do not reflect the correct legal position,” he said.
On the rival contention that Section 145 of the Negotiable Instruments Act permits a complainant to let in evidence through affidavit, Mr. Justice Nagamuthu said that the term ‘evidence’ found in Section 145 could not be equated to the expression ‘statement’ under Section 200 of Cr. P. C.
Taking a cue from the definition of ‘evidence’ under the Indian Evidence Act, the Judge said that it differentiates between oral evidence and documentary evidence. Further, Section 1 of the Act states that the enactment applied to all judicial proceedings but not to affidavits presented before the courts. “Thus, an affidavit filed before a court can never be treated as evidence unless any other law permits the same,” he observed.
The Judge also pointed out that the Law Commission of India in its 41st report had stated that sworn statements should be made in court as it had its own legal consequences.
© Copyright 2000 - 2008 The Hindu