- (1.) The present misc. petitions under Section 482 Criminal Procedure Code are directed against the order dated 14.1.2011 passed by the re visional court dismissing the revision petitions of the accused petitioner against the order passed by the learned trial court by which application under Section 203 Criminal Procedure Code dated 28.5.2010 was rejected by the learned trial court on 27.9.2010
(2.) Learned counsel for the petitioner, Mr. Manoj Bhandari relying upon the decision of a Coordinate bench of this Court dated 22.7.2009 in the case of Prakash Chand v. State of Raj. & Anr,2009 3 WLC(Raj) 765. submitted that the learned trial Court could not have taken cognizance on the complaint filed by the respondent complainant M/s. Ankur Enterprises under Section 138 of Negotiable Instrument Act merely on the basis of affidavit filed along with the complaint without examining the complainant and recording his statements on oath under Section 200 Criminal Procedure Code Learned court below has erred in rejecting the revision petition filed by the accused petitioner. The relevant portion of the judgment of coordinate bench of this Court in the case of Prakash Chand vs. State of Raj. & Anr. (supra) is reproduced below for ready reference: "15. Further, it is to be seen as to whether the provisions of Section 142 and 145 of the Negotiable Instruments Act override the provisions of Section 200 Criminal Procedure Code. It may be noted that Section 142 of the Negotiable Instruments Act does not exclude the examination of the complainant and witnesses on oath under Section 200 Criminal Procedure Code Section 145 of the Negotiable Instruments Act refers to evidence of the complainant on affidavit which does not relate to the stage before issuance of process under Section 204 Criminal Procedure Code. A specific reference was required to be made in these Sections for dispensing with the examination of the complainant and his witnesses on oath by the Magistrate. In absence of it cannot be said that the provisions of the Negotiable Instruments Act would override the provisions of Section 200 Criminal Procedure Code. 17. For the reasons given hereinabove, it is concluded that Section 142 and 145 of the Negotiable Instruments Act do not override the provisions of Section 200 of Criminal Procedure Code and it is mandatory for the Magistrate to examine the complainant, who has filed the complaint under Section 138 of the Negotiable Instruments Act. The Magistrate is obliged and duty bound to examine the complainant and his witnesses upon oath before issuance of process under Section 204 Criminal Procedure Code. Such examination would not take much time if the statement of the complainant is recorded on the same day on which the complaint is filed or on the following day when the matter is fixed. In any case, the procedure laid down by law has to be followed and the same cannot be deviated on the ground of delay in disposing a complaint under the Negotiable Instruments Act. Therefore, I am of the considered opinion that the procedure of examining a complainant and all his witnesses present, if any on a complaint filed under Section 190 Criminal Procedure Code is the basic procedure given under the Code of Criminal Procedure. Therefore, the complainant should have been examined before proceeding to take cognizance even in the present case. 18. Consequently, this criminal miscellaneous petition is allowed and the impugned orders dated 18.7.2007 and 13.5.2009 hereby quashed and set aside.
(3.) On the other hand learned counsel for the complainant. Mr. Akhilesh Rajpurohit relied upon the later view of another coordinate bench of this Court in the case of Rakesh Sharma v. State of Rajasthan &Anr., 2010 3 WLC(Raj) 191. decided on 2.4.2010 in which distinguishing the aforesaid view in the case of Prakash Chand (supra) & holding it to be per incuriam.) another learned Single Judge of this Court relying upon the Supreme Court decision in the case of M/s. Mandvi Co-op Bank v. Mmesh B. Thakore, 2010 3 RajLW 2554. and Radhey Shyam Garg v. Naresh Kumar Gupta,2009 CrLR 546. and held that Section 145 of the Negotiable Instruments Act is a non obstante provision and there is no distinction made for pre-summoning stage and post summoning stage and, therefore, the view taken by the learned Single Judge in Prakash Chand's case (supra) holding that Section 200 Criminal Procedure Code would override Section 145(1) of Negotiable Instruments Act is incorrect and has been rightly distinguished in the later view in the case of Rakesh Sharma (supra).;