R RAJENDRA REDDY Vs. SUJAYA FEEDS

JUDGEMENT

(1.) This petition is filed by the accused in C. C. 258/93 on the file of the Additional Chief Judicial Magistrate, Bangalore District, Bangalore, for setting aside the order dated 5-4-93 issuing process against the petitioner and for quashing the entire proceedings.

(2.) The respondent has filed the complaint in the lower court for an offence under Section 138 of the Negotiable Instruments Act ('the Act' for short) alleging that the petitioner had issued a cheque in respect of his earlier liability, that the cheque when presented for encashment was returned with an endorsement that the funds were insufficient and that though a notice of demand was issued to the petitioner he has not paid the amount and that as such he has committed the offence under Section 138 of the Act. The Magistrate after recording the sworn statement of the complainant and marking certain documents has ordered issue of summons to the petitioner. This order of the Magistrate is challenged by the petitioner on various grounds. The first ground urged by the learned counsel for the petitioner is that the Magistrate has not at all taken cognizance of the offence and that as such the entire proceedings are vitiated. He relied on the decision in G. A. Purushotham v. E. S. I. Corporation, ILR (1993) Karn 651. He further pointed out that in the present case when the complaint was filed on 15-3-93 the Magistrate has simply posted the ease to next day and that on 5-4-93 the Magistrate has recorded the sworn statement of the complainant and has straightway issued the process without actually taking cognizance of the offence.

(3.) In Devarapalli Laxminarayana v. Narayana, AIR 1976 SC 1672 : (1976 Cri LJ 1361) the Supreme Court has made it clear that the expression 'taking cognizance of an offence' means that the Magistrate should apply his mind for the purpose of proceeding under Section 200 and that if he has done so, then he is said to have taken cognizance of the offence and that instead of proceeding under Chapter IX he uses his discretion and takes actions of some other kind such as issuing search warrant for purpose of investigation or ordering investigation by police under Section 153, then he cannot be said to have taken cognizance of the offence. The same principle has been applied in G. A. Purushotham's case. That was a case where the complaint was by a public servant and as such there was no occasion for the Magistrate to record sworn statement. The order for issue of summons had been passed in a typed pro forma scoring off the portion which was not applicable. It is under those circumstances this Court held that there is nothing to indicate that the Magistrate had applied his mind and has taken cognizance of the offences.