- (1.) B. K. Rathi, J. In Criminal Revision No. 263 of 1998 the request has been made to set aside the order dated 25. 9. 98 passed in Criminal Revision No. 172 of 1998 by the Special Judge/additional Sessions Judge, Aligarh. In Criminal Misc. Application No. 1515 of 2000 the request has been made that III Additional Chief Judicial Magistrate, Aligarh be directed to decide Case No. 1464 of 1996 pending before him, expeditiously. Both the matters are relating to the same offence and therefore they are being dis posed of by a common judgment.
(2.) 1 have heard Sri Dharmendra Sin ghal, learned Counsel for the revisionist in Criminal Revision No. 263 of 1998 and Sri S. U. Khan, learned Counsel for the Opp. parties and also S. U. Khan, learned Counsel for the petitioners in Criminal Misc. Application No. 1515 of 2000 and Sri Dharmendra Singhal, learned Counsel for the Opp. parties. The facts giving rise to these cases are that Opp. party No. 2 Pramod Kumar Varshney and his wife Smt. Manorama Devi filed Complaint Case No. 1464 of 1996 under Section 138, Negotiable In struments Act against revisionist Rajendra Kumar, which is pending in the Court of III Additional Chief Judicial Magistrate, Aligarh revisionist Rajendra Kumar appeared in that case and filed objections that there is no sufficient ground to proceed against him. Objections were allowed by the III Additional Chief Judicial Magistrate, Aligarh by an order dated 24-1-98 and he cancelled the sum moning order of the revisionist. Against that order, Opp. party No. 2 and his wife preferred Criminal Revision No. 172 of 1998, which was allowed on 25. 9. 98 and the revisionist has been directed to face trial in the above case. Aggrieved by it, revisionist Rajendra Kumar has preferred the present Criminal Revision No. 263 of 1998. The complainants have alleged that Opp. party No. 2 is delaying the disposal of the case and therefore they filed Criminal Misc. Application No. 1515 of 2000 for direction for early disposal of the said case. According to the complaint, there is a Firm M/s Pyarey Lal Har Ballabh Das of which Smt. Manorama Devi wife of Pramod Kumar is the sole Proprietor. The complainants are Smt. Manorama Devi and Pramod Kumar Varshney and it is alleged that Pramod Kumar Varshney is the Manager of the Firm. That an account payee cheque dated 12. 8. 96 for Rs. 8,02,634. 09 was given by the revisionist, which was dishonoured by the Bank on 16. 8. 96. That therefore, the complainants served legal notice dated 27. 8. 96, which was received by the accused, that he did not pay the amount.
(3.) THREE contentions have been raised before me in this revision by Sri Dharmendra Singhal, learned Counsel for the revisionist. The first contention is that the complaint has not been filed by an authorised person. Admittedly the cheque is in the name of the Firm of which Smt. Manorama Devi in the sole Proprietor. Therefore she is holder is due course of the cheque. However, the complaint has been filed by her as well as her husband Pramod Kumar Varshney. Therefore, Pramod Kumar Varshney is an unnecessary party and has been unnecessarily impleaded as complainant. The complaint can be filed only by payee or the holder of the cheque in due course as provided by Section 142 (a) of the Act. The complaint, therefore, can not be said to be filed by an unauthorised person as Smt. Manorama Devi is also one of the complainant, who is holder of the cheque in due course. However, Pramod Kumar Varshney has been unnecessarily impleaded as complaint, but the com plainant can not be rejected on this ground. In this connection it is also con tended that on behalf of the revisionist that statement of the complainant under Section 200, Cr, P. C. should have been recorded, but no statement of Smt. Manorama Devi has been recorded. That the statement of her husband has been recorded and in its basis the revisionist has been summoned. I have considered the arguments. It is mandatory was the state ment of the complainant should be recorded in the complaint case under Sec tion 200, Cr. P. C. Pramod Kumar Varshney cannot be deemed to be the complainant and his statement under Section 200, Cr. P. C. could not be recorded. Therefore, the procedure adopted by the learned III Ad ditional Chief Judicial Magistrate, Aligarh is illegal and the summoning order is fit to be set aside. However, for this reason the com plaint cannot be dismissed as Smt. Manorama Devi is also the complainant. The trial Court should record the statement of Smt. Manorama Devi under Section 200, Cr. P. C. and thereafter, he may proceed with the case in accordance with law.;