A contextual analysis of the provisions of Section 145 of the Act leaves no manner of doubt that the special procedure enabling the complainant to give evidence on affidavit notwithstanding anything contained in the Code of Criminal Procedure is a procedure available only in relation to a complaint for an offence punishable under Section 138 Negotiable Instruments Act. In the opinion of the Court, the said special procedure cannot be utilized or invoked by a complaint, the Drawer, in this case, to prosecute the accused for an offence under Penal Code; in this case, the Payee under Section 420 IPC. Thus, the impugned order summoning the applicant to stand his trial for an offence punishable under Section 420 IPC on the basis of affidavit evidence received by the learned Magistrate with the aid of Section 145 of the Negotiable Instruments Act is manifestly illegal and cannot be sustained. Thus, the impugned order in so far as it relates to summoning the applicant for an offence punishable under Section 420 IPC is not sustainable and is liable to be quashed.

In the result, the instant application is partly allowed. The impugned order only to the extent that it summons the applicant to stand his trial for an offence punishable under Section 420 IPC is quashed. The rest of the order by which the applicant has been summoned to stand trial for an offence punishable under Section 138 of the Negotiable Instruments Act is upheld.

The Magistrate would proceed with the complaint under Section 138 of the Negotiable Instruments Act in accordance with law and conclude the trial in accordance with provisions of Section 143 (2) &(3) of the Act. Interim order dated 15.12.2004 stands vacated.

Let a copy of this judgment be certified to the Magistrate concerned forthwith.

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