RAGHUVENDRA S. RATHORE, J. - (1.) IN this criminal miscellaneous petition, the petitioner has sought to challenge the order dated 18/7/2007 passed by the learned Additional Chief Judicial Magistrate No.10, Jaipur City, Jaipur, whereby he had taken cognizance against him for the offences under Section 138 of the Negotiable INstruments Act, 1881. Being aggrieved of the said order, the petitioner preferred a revision petition but the same was dismissed by the learned Additional District and Sessions Judge (Fast Track) No.4, Jaipur City, Jaipur on 13.05.2009 and the order of the learned Magistrate was affirmed.
(2.) THE relevant facts for the purpose of the present petition are that a complaint came to be filed by respondent No.2 on 16.07.2007 for punishing the petitioner as the cheque issued by him was dishonoured and further, it was prayed that double the amount of cheque may be paid to him from the accused, by way of compensation. Subsequently on 18.07.2007, the complainant-respondent No.2 filed an affidavit deposing that he is the complainant in this case and the contents of the complaint are true as per his personal knowledge and belief as well as the information given by his counsel. On 18.07.2007 itself, the learned Magistrate had passed the order impugned, taking cognizance and issuing process against the petitioner and the case was posted for 01.09.2007. THE learned Magistrate has noted in the order that the complainant, after filing an affidavit, has closed his evidence. Further, the arguments for cognizance were heard and it has been stated in the order impugned that the complainant, in his evidence, has reiterated the facts given in the complaint and he also got the documents exhibited. It has also been mentioned in the order impugned that on the basis of oral and documentary evidence of the complainant, it is established that the cheque was given and the same was dishonoured. It has been contended by the counsel for the petitioner that the order of cognizance passed by the learned Magistrate is illegal and contrary to law. According to him, there was no evidence on record on behalf of the complainant and, as such, the learned Magistrate has erred in passing the impugned order of cognizance. According to him, even the affidavit filed by the complainant is not proper as it does not satisfy the provisions of Section 3 of the Evidence Act. In other words, he has submitted that the said affidavit, filed by the complainant, does not come within the definition of affidavit as per the relevant provisions of law. Furthermore, the counsel for the petitioner has submitted that even the order passed by the learned Revisional Court is erroneous and illegal for the same reasons as submitted by him in respect of the order of the learned Magistrate. On the other hand, the learned counsel for respondent No.2 has supported the orders passed by the learned courts below. He has further submitted that in view of the provisions under Sections 145 and 146 of the Negotiable Instruments Act the evidence on record can be produced by way of affidavit. He has also submitted that the affidavit filed by the complainant is in accordance to law and the same has been rightly considered by the learned Magistrate while taking cognizance in the matter. In support of his case, he placed reliance on the cases of Nalini Kumar Dey & Anr. vs. State of Tripura, AIR 1953 Tripura 4 and Rameshwar Lal vs. Subhash Chandra & Anr., 2006(2) Cr.L.R. (Raj.) 933. I have given my thoughtful consideration to the submissions made by the counsel for the rival parties. The undisputed facts of the present case are that a complaint under Section 190 Cr.P.c. for the offence under Section 138 of the Negotiable Instruments Act, 1881 was filed in the Court of Additional Chief Judicial Magistrate No.10, Jaipur City Jaipur on 16.07.2007. Subsequently on 18.07.2007, an affidavit was filed by the complainant before the learned Magistrate mentioning that he is the complainant in the proceeding and is fully aware of the facts and circumstances of the case. Further he has deposed that the entire facts mentioned in the complaint are true and correct on the basis of his personal knowledge and belief and on the information given by his counsel. Before passing the order of cognizance on 18.07.2007, no statements of the complainant under Section 200 Cr.P.C. or that of his witness under Section 202 Cr.P.C. were recorded by the learned Court below. Looking to the facts and circumstances of the case and the submissions made by the counsels for the rival parties, the first and foremost question which emerges for consideration is as to whether it is mandatory for the Magistrate to examine the complainant, in a complaint under the Negotiable Instruments Act, under Section 200 Cr.P.C. before issue of process.
(3.) IN order to decide the aforesaid question, it would be more appropriate to consider the relevant provisions of law. Chapter XV of the Code of Criminal Procedure provides for the procedure to be adopted in case of a complaint to Magistrate. Section 200 onwards, in the said Chapter, read as under:- 200.Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complainant; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192: Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them. 201.Procedure by Magistrate not competent to take cognizance of the case.- If the complaint is made to a Magistrate who is not competent to take cognizance of the offence, he shall, - (a) if the complaint is in writing, return it for presentation to the proper Court with an endorsement to that effect; (b) if the complaint is not in writing, direct the complainant to the proper Court. 202.Postponement of issue of process.- (1) Any Magistrate , on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192, may, if he thinks fit, postpone the issue of process against the accused, and either inquire into the case himself or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding: Provided that no such direction for investigation shall be made, - (a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or (b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200. (2) IN an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath: Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath. (3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Code on an officer in charge of a police station except the power to arrest without warrant. 203.Dismissal of complaint.- If, after considering the statements on oath (if any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under section 202, the Magistrate is of opinion that there is no sufficient ground for proceeding, he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing. IN other words, Section 200 of Cr.P.C. casts a duty on the Magistrate taking cognizance of an offence on a complaint to examine, upon oath, the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant, his witnesses and also by the Magistrate. Such Examination is sine-qua-non for consideration of issue of process which gives an opportunity to the Magistrate to ascertain about the truth of the allegations made in the complaint. It is a safeguard for both the complainant and the accused persons. It would be the first record on oath at the earliest which would help in ascertaining whether there are some additions and improvements in the prosecution case. Besides, a private complaint, by its character, is very different from a case instituted on police report. There is no enquiry by the police, there are no statements under Section 161 Cr.P.C. and therefore to safeguard an innocent, it is necessary to record the statements of the complainant and his witnesses as soon as possible and then looking to the credibility of that evidence, take a decision about the issuance of the process. Moreover, the word examination used in Section 200 of the Code means that the Magistrate is obliged to put questions to such complainant and elicit the answers from him. It enjoins the judicial duty to be performed and also requires application of judicial mind while examining the complainant on oath. The said work is to be done by the Magistrate himself and by no other. When such complainant is examined on oath by the Court, he is interrogated for such examination. The truth is very likely come to surface because complainant knows that he is being examined on oath by the Magistrate. It is not unknown that the complaints are being drafted by a lawyer at the say of the complainant and it is such formulated conversation which is presented before the Magistrate in the form of a complaint. Therefore, examination of the complainant on oath is the best way to surface the truth on record. IN all probabilities, such examination of the complainant gives the truthful version of the incident and this would enable the Magistrate to consider, by application of judicial mind, whether to issue process or not. In respect of Chapter XV of the Code of Criminal Procedure, the Hon'ble Supreme Court, in the case of Adalat Prasad vs. Rooplal Jindal & Ors., 2004 (7) SCC 338, had observed, in para 12 to 14, as under:- 12. Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. If on such examination of the complaint and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses have not made out sufficient ground for proceeding. Per contra, if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage have materials to proceed, he can proceed to issue process under Section 204 of the Code 13. Section 202 contemplates postponement of issue of process. It provides that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the Police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under section 203 of the Code. 14. But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under section 204 of the Code. In none of these stages the Code has provided for hearing the summoned accused, for obvious reasons because this is only a preliminary stage and the stage of hearing of the accused would only arise at a subsequent stage provided for in the latter provision in the Code. It is true as held by this Court in Mathew case that before issuance of summons the Magistrate should be satisfied that there is sufficient ground for proceeding with the complaint but that satisfaction is to be arrived at by the inquiry conducted by him as contemplated under Sections 200 and 202, and the only stage of dismissal of the complaint arises under Section 203 of the Code at which stage the accused has no role to play, therefore, the question of the accused on receipt of summons approaching the court and making an application for dismissal of the complaint under Section 203 of the Code for a reconsideration of the material available on record is impermissible because by then Section 203 is already over and the Magistrate has proceeded further to Section 204 of the Code. The learned Devision Bench of the Kerala High Court, in the case of N. Harihara Iyer vs. State of Kerala, 2000 Cr.L.J. 1251, while considering the object of Section 200 Cr.P.C., in para 19, held as under:- We, therefore, hold that the enquiry envisaged under Section 200 is for ascertaining the truth or falsehood of the complaint and also for ascertaining whether there is any evidence in support of the complaint so as to justify the issue of process. Therefore, it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complainant. The object is to test whether the allegations make out a prima facie case to enable him to issue process. Admittedly, the aforesaid procedure under Section 200 Cr.P.C. was not adopted by the learned Magistrate in the instant case while considering the complaint filed by respondent No.2 and passing the impugned order of cognizance. ;