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'No need to summon complainant to court'

In a ruling that could speed up disposal of cheque bouncing cases, the Bombay High Court ruled that a magistrate need not summon the complainant or examine him in person for initiating criminal proceedings against the accused. Urvi Mahajani reports

mumbai Updated: Dec 12, 2010 02:17 IST
Urvi Mahajani

In a ruling that could speed up disposal of cheque bouncing cases, the Bombay High Court ruled that a magistrate need not summon the complainant or examine him in person for initiating criminal proceedings against the accused.

A three-judge bench of Chief Justice Mohit Shah, justice VM Kanade and justice Rekha Sondur-Baldota held that it is "open to the magistrate to rely on affidavit filed by the complainant and is not obliged to summon him or his witnesses to decide whether or not to issue process."

While overruling earlier decisions, the bench said, "There is nothing wrong if the complainant files an affidavit in support of complaint indicating all facts." However, the bench concluded that the magistrate may call the complainant to record, if required.

The ruling came after a single judge referred the matter to the chief justice. The single judge was hearing a petition by Rajesh Chalke, an accused in a cheque-bouncing case, where the magistrate had initiated criminal proceedings against Chalke based on the complainant's affidavit.

Chalke contended that the magistrate was required to examine the complainant, Emco Dynatorq, under Section 200 of CrPC. His counsel, Shyam Marwadi argued that under CrPC, recording evidence of the complainant is mandatory. He argued that this has caused serious prejudice to Chalke as he is required to appear in court at every hearing till the case is decided, which could take years.

Additional government pleader argued that considering the huge pendency of cheque bouncing cases and for speedy disposal, the legislature had dispensed with examination of complainant.

Emco Dynatorq Pvt Ltd had filed a complaint under section 138 (A) of the Negotiable Instruments Act against Champagne Indage Ltd (now Indage Vintners Ltd); its MD Ranjit Chougule, and chief financial officer Chalke after a cheque of Rs 20 lakh issued by them was dishonored.