2014 ACD 347 (ALL) ::(2014) 3 CivLJ 662 ::(2014) 1 NIJ 223 ::(2014) 3 RecCriR 34 ::(2014) 3 RecCivR 218 ::(2015) 1 BankCas 368 ::(2014) 2 BankCas 104

Allahabad High Court

Hon'ble Judge(s): Het Singh Yadav , J

( A ) Negotiable Instruments Act (26 of 1881) S. 138 , 145 — Dishonour of cheque — Trial — Evidence through affidavit — Special provision as to, u/S. 145 of Act — Not applicable to offences punishable under Penal Code.The special provision of filing evidence through affidavit as indicated under Section 145, N.I. Act is not applicable relating to the offences punishable under Indian Penal Code. Thus, the Magistrate while taking cognizance of an offence on the complaint under any offence other than N.I. Act is bound to follow the scheme of Chapter XV of the Code. Obviously, the Magistrate taking cognizance of an offence punishable under Section 420, I.P.C. cannot issue process under Section 204 of the Code without following the procedure as laid down under Section 200 of the Code. Taking into consideration view that initially the complaint was instituted under Section 138, N. I. Act, however, taking cognizance of offence under Section 420, I.P.C. by the Magistrate in this case on the basis of affidavit filed by the applicant appears to be procedural irregularity which can be cured, as the case is at its initial stage. The Magistrate while taking cognizance of the case under Section 420, I.P.C. before issuing the process against the applicant was bound to follow the procedure of Chapter XV of the Code. Magistrate concerned is directed to follow the procedure applicable to the complaint cases under Chapter XV of the Code in accord....