R MUKUNDAIAH Vs. STATE OF KARNATAKA

JUDGEMENT

(1.) The point for consideration in this case is that, on a private complaint if the matter is referred to the police for enquiry and to submit a report under Section 156(3), Cr. P,C. and on receipt of such a report and its acceptance, whether the Magistrate can order to issue notice to the complainant for fresh examination. To answer this point, it is proper to make a reference to the order under challenge which reads as follows:

(2.) A few facts leading to the above order are: Respondcnt-2 had advanced a sum of Rs. 30,000/- to the petitioner. On demand, the petitioner issued a cheque for the said sum representing that as soon as it is presented for encashment, the same would be honoured. Believing his words, the 2nd respondent presented the cheque for encashment. It was dishonoured. Hence, the 2nd respondent issued a notice under Section 138 of the Negotiable Instruments Act, as the transaction in question covered under the said Act. The said notice was served on the petitioner. Inspite of the demand made in the said notice, the petitioner failed to pay the amount. Then, the 2nd respondent filed a complaint under Section 200, Cr. P.C. read with Sections 138 and 142 of the Act before the VII Additional Chief Metropolitan Magistrate, Bangalore City, to take action against the petitioner. The said complaint was filed on 29-11-1990. The procedure regarding recovery of the amount and taking action for the failure to pay the amount has been prescribed under Sections 138 and 142 of the Negotiable Instruments Act (hereinafter referred to as 'the Act') which read as follows:

(3.) According to Sri Sriram, learned counsel for the petitioner, when once the matter is referred to the police who in turn submits the report under Section 156(3), Cr. P.C. and the same is accepted, it is not proper for the learned Magistrate to call upon again the complainant to give her/his statement, otherwise such an approach amounts to taking cognizance both on the private complaint and on the charge-sheet filed by the police. In support of his contention, Sri Sriram, learned counsel for the petitioner, relies upon a decision of the Kerala High Court in Kesavan Natesan vMadhavan Peethambaran and Others, 1984(1) Kar. L.J. 324. For these reasons, the learned counsel for the petitioner submits that entire proceedings on the file of the learned Magistrate be set aside as the same have resulted in miscarriage of justice. Further, according to him, if the proceedings are continued, the same amount to abuse or process of the Court.