KAUSHALBHAI AMUBHAI VAGASHIYA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) By way of this petition under Articles 226 and 227 of the Constitution of India read with Sec. 482 of the Code of Criminal Procedure, 1973 (for short, "the Cr.P.C ."), the petitioner - original accused seeks to quash and set aside the criminal proceeding being Criminal Case No.1057 of 2021 pending before the learned Chief Judicial Magistrate, Amreli under the provisions of Sec. 138 of the Negotiable Instruments Act.

(2.) Heard Mr. Jitendra Malkan, learned advocate with Mr. Aman Mir, learned advocate and Mr. Z. Z. Shaikh, learned advocate for the petitioner.

(3.) Mr. Malkan, learned advocate for the petitioner has mainly argued that the issuance of process under the provisions of Sec. 204 of the Cr.P.C. is in violation of Sec. 200 of the Cr.P.C. Mr. Malkan submitted that in view of Sec. 200 of the Cr.P.C., it is obligatory on the part of the learned Magistrate to examine the complainant and the witnesses, if any, on oath before taking cognizance of the matter and/or before issuance of process under Sec. 204 of the Cr.P.C. is in violation of Sec. 200 of the Cr.P.C. . Mr. Malkan, learned advocate has vehemently submitted that at the time when the process under Sec. 204 of the Cr.P.C. came to be issued by the learned Chief Judicial Magistrate, Amreli, vide its order dated 15 th April 2021, no such examination of complainant on oath was made by the learned Magistrate and thereby, the order dtd. 15/4/2021 is not tenable in law and the consequential proceeding deserves to be quashed.