- (1.) The point for consideration in this case is that, on a private complaint if the matter is referred to the police for enquiry and to submit a report under Section 156(3), Cr. P,C. and on receipt of such a report and its acceptance, whether the Magistrate can order to issue notice to the complainant for fresh examination. To answer this point, it is proper to make a reference to the order under challenge which reads as follows: "10-5-1991. State by A.P.P. Accused, Notice issued to the complainant. Case called out. Complainant absent, Re-issue notice to complainant. Call on 20-7-1991."
(2.) A few facts leading to the above order are: Respondcnt-2 had advanced a sum of Rs. 30,000/- to the petitioner. On demand, the petitioner issued a cheque for the said sum representing that as soon as it is presented for encashment, the same would be honoured. Believing his words, the 2nd respondent presented the cheque for encashment. It was dishonoured. Hence, the 2nd respondent issued a notice under Section 138 of the Negotiable Instruments Act, as the transaction in question covered under the said Act. The said notice was served on the petitioner. Inspite of the demand made in the said notice, the petitioner failed to pay the amount. Then, the 2nd respondent filed a complaint under Section 200, Cr. P.C. read with Sections 138 and 142 of the Act before the VII Additional Chief Metropolitan Magistrate, Bangalore City, to take action against the petitioner. The said complaint was filed on 29-11-1990. The procedure regarding recovery of the amount and taking action for the failure to pay the amount has been prescribed under Sections 138 and 142 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') which read as follows: "138. Dishonour of cheque for in.su/T1ciency, etc., of funds in the accounts: Where any cheque drawn by a person on an account maintained by him with a banker for payment or any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid either because of the amount of money standing to that credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to one year, or with fine which may extend to twice the amount of the cheque, or with both: Provided that nothing contained in this section shall apply unless, (a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within a period of its validity whichever is earlier, (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing to the drawer of the cheque, within fifteen days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be to the holder in due course of the cheque, within fifteen days of the receipt of the said notice. 142. Cognizance of offences, Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),- (a) no Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee, or as the case may be, the holder in due course of the cheque. (b) such complaint is made within one month of the date on which the cause of action arises under clause (c) of the proviso to Section 138; (c) no Court inferior to that of a Metropolitan Magistrate or a Judicial Magistrate of the first class shall try any offence punishable under Section 138." Reading of these two sections makes it clear that on presenting a private complaint under Section 200, Cr. P.C., it is not necessary for the learned Magistrate to make a direction tolhe police to enquire and submit a report under Section 156(3), Cr. P.C. This position is implied in the section itself. Inspite of that, on receipt of the complaint on 29-11-1990 the learned Magistrate ordered to refer the complaint to the Police for investigation and to report under Section 156(3), Cr. P.C. On 28-12-1990 the police submitted the report, viz., charge-sheet. The same was accepted and the case came to be numbered as C.C. No. 1636 of 1990. Then the learned Magistrate ordered to issue summons to the accused returnable by 10-5-1991. On 10-5-1991 the learned Magistrate ordered to issue summons to the complainant/respondent 2 herein. On 25-7-1991 notice was issued to the complainant. Aggrieved by the said proceedings the petitioner who is the accused in the said case has filed this petition contending that the approach of the learned Magistrate in directing to issue summons to the complainant amounts to taking cognizance twice which is forbidden in law.
(3.) According to Sri Sriram, learned counsel for the petitioner, when once the matter is referred to the police who in turn submits the report under Section 156(3), Cr. P.C. and the same is accepted, it is not proper for the learned Magistrate to call upon again the complainant to give her/his statement, otherwise such an approach amounts to taking cognizance both on the private complaint and on the charge-sheet filed by the police. In support of his contention, Sri Sriram, learned counsel for the petitioner, relies upon a decision of the Kerala High Court in Kesavan Natesan vMadhavan Peethambaran and Others, 1984(1) Kar. L.J. 324. For these reasons, the learned counsel for the petitioner submits that entire proceedings on the file of the learned Magistrate be set aside as the same have resulted in miscarriage of justice. Further, according to him, if the proceedings are continued, the same amount to abuse or process of the Court.;