N HARIHARA IYER Vs. STATE OF KERALA

JUDGEMENT

(1.) The complainant before the Chief Judicial Magistrate Court, Ernakulam, in complaints filed under S.142 of the Negotiable Instruments Act and S.190 of the Code of Criminal Procedure alleging an offence under S.138 of the Negotiable Instruments Act against the accused, is the petitioner in the Original Petition, which was filed :

(2.) The reliefs prayed for are substantial questions of law, which has far reaching consequences. Therefore, we heard the matter at length and proceed to consider the submissions made by Mr. P. B. Sahasranaman, learned counsel for the appellant and Mr. K. Gopalakrishna Kurup, learned Public Prosecutor. We also heard Mr. M. N. Sukumaran Nair, Sr. Advocate, who was waiting for some other case in Court.

(3.) The appellant petitioner used to advance money to various persons and on that transaction, used to receive cheques and used to lodge complaints under the provisions of the Negotiable Instruments Act if cheque bounces. Accordingly, he has instituted few criminal complaints against different persons before the Chief Judicial Magistrate, Ernakulam, which were also numbered. After the receipt of the complaint, the learned Magistrate has posted the case on 22.6.1999 for taking sworn statement under S.200 of the Code of Criminal Procedure. On that day, the Magistrate has taken the statement and issued summons to the accused. Thereafter the matter was adjourned for taking sworn statement in other cases. According to Mr. Sahasranaman, the examination of the complainant on oath under S.200 Cr.P.C. is not essential in cases coming under S.142 of the Negotiable Instruments Act. As per S.200 Cr.P.C., 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 in writing and shall be signed by the complainant and the witnesses by the Magistrate. It is submitted by Mr. Sahasranaman that the "complaint" stated in the Criminal Procedure Code is quite different from the "complaint" lodged under the Negotiable Instruments Act and the complainant in all the cases under the Negotiable Instruments Act is necessarily the holder of the cheque. Similarly, the accused is a named person. The documentary evidence in support of the same have to be produced along with the complaint and so, there is no scope for any oral evidence before taking cognizance of the complaint and whether the complaint shows any prima facie case or not can be ascertained from the complaint and the documents produced along with it by the complainant and, therefore, there is no scope for the oral examination of the complaint lodged under S.142 of the Negotiable Instruments Act.