- (1.) Petitioner has filed this petition under Section 482 of the Code of Criminal Procedure,1973 (for short 'Cr.P.C.') seeking quashing of the criminal complaint No.874/24.12.2009 titled as 'Sanjay Mutreja vs. Hans Raj Chopra' under Sections 182, 499, 500 of the Indian Penal Code ('IPC' for short) and summoning order dated 24.7.2010 (Annexure P2) alongwith all consequential proceedings arising therefrom.
(2.) Learned counsel for the petitioner, inter-alia, has submitted that the summoning order dated 24.7.2010 (Annexure P2) was liable to be quashed as there was no legal evidence on record.
(3.) The complainant, while appearing in the witness box, has tendered his affidavit by way of his preliminary evidence. As per Section 200 Cr.P.C., the affidavit tendered by the complaint,as part of his statement, could not be said to be a sworn statement. Hence, there was no legal evidence available on record in support of the complaint filed by the complainant. Thus, the summoning order dated 24.7.2010 (Annexure P2) was liable to be quashed. In support of his arguments, learned counsel has placed reliance on K.Venkataramaiah and Others v. Katteraro S.Deshpande, 2008 CrLJ 1547 wherein it was held as under:- "When a specific procedure is contemplated under Section 200 of Cr.P.C., it cannot be deviated by adopting some other procedure which is not prescribed, even though it may be convenient to the complainant. The purpose of recording the substance of sworn statement by the Magistrate is to enable the Magistrate to satisfy himself of the allegation in the complaint to proceed further in the matter. Under Section 200 Cr.P.C, the Magistrate himself examines the complainant and the witnesses and records the substance of the same. The Magistrate is under obligation to reduce the substance of the statement in writing which is to be signed by the complainant and the witnesses. If an affidavit is accepted, it would go contrary to the provisions of Section 200 of Cr.P.C. In my opinion, Section 200 of Cr.P.C. does not contemplate acceptance of affidavit in the form of sworn statement nor affidavit partakes the character of sworn statement as required under Section 200 Cr.P.C. Sworn statement does not require any cross-examination nor requires a recording of the statement at the instance of an advocate. It is not an examination in chief, but it is the statement made before the Magistrate for his satisfaction. The filing of an affidavit by the complainant in support of his complaint would be contrary to the procedure under Section 200 of Cr.P.C. and it is inadmissible.";