N.G. RAMAPPA Vs. SRI. JAYARAM, MAJOR

JUDGEMENT

(1.) THOUGH this petition is listed today for admission, with the consent of the learned counsels appearing on both sides, the matter is heard for final disposal. The respondent initiated prosecution against the petitioner for the offence punishable under Section 138 of the Negotiable Instruments Act (for short, 'N.I. Act') in PCR No. 75/2009 on the file of the Principal Civil Judge (Jr. Dn.) and JMFC, Channarayapatna.

(2.) ON 20.07.2009, the complainant filed sworn statement by way of affidavit. From that date, the matter was being adjourned from time to time to hear arguments. However, on 03.07.2010, the learned Magistrate discarded the sworn statement filed by way of affidavit and posted the matter for recording sworn statement of the complainant before the court. Subsequently, on several dates, the complainant remained absent and on some occasions, the Presiding Officer was on leave. Therefore, the case was being adjourned from time to time for recording sworn statement of the complainant. However, on 22.11.2012, though once again the complainant was absent, a submission was made before the court that the sworn statement has already been recorded. On the basis of such submission, the matter was listed for hearing arguments and thereafter by the impugned order dated 27.02.2013, the learned Magistrate directed registration of the criminal case and issue of summons to the petitioner. Aggrieved by the said order, the petitioner has presented this petition.

(3.) HAVING heard the learned counsels appearing on both sides, I find considerable force in the contention raised by the petitioner. As noticed supra, though at the initial stage, sworn statement by way of affidavit was filed, later, it was discarded by the court and thereafter the matter was being adjourned for recording the sworn statement. As could be seen from the certified copy of the order sheet, subsequent to 03.07.2010, the complainant had not appeared before the court nor his statement was recorded. The notings made by the learned Magistrate on 22.11.2012 that the sworn statement has been recorded, was obviously on the basis of the submission made by the counsel for the complainant. The said submission was not correct for the reason that sworn statement of the complainant had not been recorded by that date. Nevertheless, the learned Magistrate without applying his mind, proceeded to pass the impugned order.