SARRAF, J. - (1.) THIS criminal misc. petition under Section 482 Cr. P. C. has been directed against the order dated 22. 8. 2007 passed by Judicial Magistrate, First Class No. 4, North, Kota in criminal case No. 146/2007 whereby the application filed by the petitioners for dropping the proceedings under Section 138 of the Negotiable Instruments Act (hereinafter referred to as the `act') has been dismissed.
(2.) HEARD learned counsel for the petitioners and learned counsel for the respondent. Learned counsel for the petitioners has contended that the trial Court has committed serious error in taking cognizance against the petitioners of the offence under Section 138 of the Act merely on the basis of affidavit and without complying with the provisions contained in Sections 200, 202 Cr. P. C. as according to him before taking cognizance of an offence on complaint the Magistrate is bound to examine upon oath the complainant and the witnesses. Learned counsel for the respondent has argued that under Section 145 of the Act the evidence of the complainant may be given on affidavit and no oral examination of the complainant or his witnesses is necessary. He has further argued that cognizance against the petitioners of the offence under Section 138 of the Act has been taken by order dated 4. 1. 2007 and that order has became final as it has not been challenged by the petitioners, therefore, the petition is not maintainable. Section 145 (1) of the Act reads as under:-      " Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. " The words "notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2) of 1974" mean without being affected by any provision contained in the Code. It is a well settled principle of interpretation of statutes that non obstante clause is meant to give an over-riding effect to a provision unless there are some exceptional reasons to restrict such an interpretation. It is thus clear that provisions contained in Section 145 (1) of the Act will prevail over other provisions of the Code and, therefore, the evidence of the complainant may be given by him on affidavit. It is not a case where we have to make an exception.
(3.) THE trial Court has committed thus no error in taking cognizance on the basis of the affidavit given by the respondent. Cognizance has been taken against the petitioners by order dated 4. 1. 2007 and this order has become final. The petitioners have challenged merely the order dated 22. 8. 2007 whereby the application of the petitioners for dropping the proceedings has been dismissed. I agree with the learned counsel for the respondent that since the order of cognizance dated 4. 1. 2007 has not been challenged the petition is not maintainable. For the reasons stated above, the petition deserves to be dismissed. ;