RAJ KUMAR SINGHANIA Vs. ASHOK JAIN

JUDGEMENT

(1.) THE aforesaid three petition (Cr. M.P. Nos. 128, 129 & 130 of 2010) filed under Section 482 of the Cr.P.C. are being disposed off by a common order as common question of law and fact arises for consideration in all the three cases.

(2.) THE respondent-complainant-Ashok Jain filed three different complaint cases against the petitioner-accused alleging commission of offence under Section 138 of the Negotiable Instrument Act. 1881 (In short "the Act of 181") on account of dishonour of three difference cheques alleged to be given by the petitioner to the complainant. Upon perusal of the complaint filed in each of the cases, the Magistrate registered offence under Section 138 of the Act of 1881 against the petitioner leading to registration of three criminal cases being Criminal Case No. 13, 14 and 15 of 2009.

(3.) THOUGH in the petition, several grounds have been raised, at the time of submission before this Court, learned counsel for the petitioner sought to assail the legality and validity of order dated 03.07.2009 passed by the Magistrate in each of the cases, by which, cognizance has been taken by registering offence under Section 138 of the Act of 181 against the applicant, on the sole ground that the learned Magistrate exceeded his jurisdiction in taking cognizance and registering the offence and issuing process without examining on oath the complainant and witnesses as per the list of witnesses appended to the complaint. Learned counsel for the petitioner contended that the provisions contained in Section 200 of the Criminal Procedure Code, 1973 (In short "the Code"), which are applicable in proceedings, instituted on a complaint filed under Section 138 of the Act of 1881, mandatorily required the Magistrate to examine the complainant on oath and the witnesses present before issuing process by taking cognizance of the offences alleged. Learned counsel for the petitioner urged that registration of offence and issuance of process, setting criminal law in motion is a serious matter, and therefore, the provisions contained in Section 200 of the Code, which prescribed the manner, in which, the cognizance can be taken, are mandatory and could not be by-passed before taking cognizance and issuing process. He submits that the provisions contained in Section 200 of the Code empower the Magistrate to subject a person to criminal proceedings, therefore, duty has been cast on the Magistrate to examine upon oath the complainant and his witnesses present, if any, in order to ascertain the truth or genuineness 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. He submits that it is incumbent upon the Magistrate taking cognizance on the complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complaint, the object being to test whether the allegations make out a prima facia case to enable him to issue process. In support of his submission, learned counsel for the applicant placed reliance on a decision of Rajsthan High Court in the case of Prakash Chand versus State of Rajasthan and Another, 2010 (1) Crimes 430 (Raj.).