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2012 DIGILAW 1825 (ALL)

Bhule Ram Chandel v. State of U. P.

2012-08-14

MANOJ MISRA

body2012
JUDGMENT Hon’ble Manoj Misra, J. : Heard Sri B.D. Mandhyan, learned Senior Counsel assisted by Sri J.S. Chauhan, Advocate for the petitioner, Sri Ayank Mishra, Advocate for the respondent no.2; and learned A.G.A. for the State. 2. The facts giving rise to the present petition are that a complaint, under Section 138 of the Negotiable Instruments Act, was filed by the petitioner against the respondent no.2 with regards to dishonour of four cheques. On this complaint the Third Additional Chief Judicial Magistrate, Gautam Budh Nagar summoned the respondent no.2, by its order dated 16.01.2010. Challenging the summoning order dated 16.01.2010 the respondent no.2 filed Criminal Revision No.65 of 2010, which was allowed by order dated 02.05.2011 and the summoning order dated 16.01.2010 was set aside. The revisional court set aside the summoning order only on the ground that the statement of the complainant was not recorded in court but was submitted by way of an affidavit, therefore, there was violation of the provisions of Section 200 Cr.P.C. and, as such, the issuance of process was bad in law. 3. Challenging the order dated 02.05.2011, Sri B.D. Mandhyan, learned Senior Counsel appearing for the petitioner (the complainant) submitted that Section 145 of the Negotiable Instruments Act provides that the evidence of the complainant may be given by him on affidavit. It has been submitted that Section 145 of the Negotiable Instruments Act is a special provision and would be operative notwithstanding anything contained in the Code of Criminal Procedure. 4. In support of his contention, Sri B.D. Mandhyan placed reliance on a decision of the Apex Court in the Case of Mandvi Cooperative Bank Limited Vs. Nimesh B. Thakore reported in (2010) 3 SCC 83 , where the Hon’ble Apex Court relying on the provisions of Section 145 of the Negotiable Instruments Act was of the view that the complainant’s statement-in-chief could be on affidavit although it is open to call him for cross-examination in exercise of power under sub-Section (2) of Section 145. 5. In view of the decision of the Apex Court, the order passed by the revisional court is rendered vulnerable. 6. At this stage, learned counsel for the respondent no.2, Sri Ayank Mishra submitted that the revisional court may be directed to decide the revision afresh as many other points were also involved. 7. 5. In view of the decision of the Apex Court, the order passed by the revisional court is rendered vulnerable. 6. At this stage, learned counsel for the respondent no.2, Sri Ayank Mishra submitted that the revisional court may be directed to decide the revision afresh as many other points were also involved. 7. Considering the submissions made by learned counsel for the parties, I am of the view that the order dated 02.05.2011 passed by the Special Judge/S.C. & S.T. Act, Gautam Budh Nagar in Criminal Revision No.65 of 2010 is liable to be set aside. 8. Accordingly, the order dated 02.05.2011 passed by the court below is hereby set aside and the court below is directed to decide the revision afresh, in accordance with law, preferably within a period of one month from the date of production of certified copy of this order. 9. With the aforesaid directions, the writ petition stands disposed of.