AMINA BEEVI Vs. ABDUL JABBAR

JUDGEMENT

(1.) THE Petitioner, who has been implicated for the offence under Section 138 of the Negotiable Instruments Act, has come forward with this Petition, seeking for the relief of quashing the proceedings pending in C.C. No.159 of 2003 on the file of the Judicial Magistrate No.II, Mannargudi, Tiruvarur District.

(2.) THE learned counsel appearing for the Petitioner contended that the Complaint was filed before the Judicial Magistrate on 28.8.2003 and the same was posted on 1.9.2003 for "Check and Call" and on 1.9.2003 even without examining the petitioner as required under Section 200 of the Cr.P.C., the learned Magistrate straightaway took cognizance of the offence against the accused/petitioner herein and issued summons to the petitioner for the offence under Section 138 of the Negotiable Instruments Act. It is also contended that the learned Judicial Magistrate has committed error of law in taking cognizance of the offence, even without recording the sworn statement as contemplated under Section 200 of the Cr.P.C. and as such, the order, dated 1.9.2003, taking cognizance of the offence itself is unsustainable in law. THE learned Counsel for the petitioner further contended that the illegality is very much clear from the order, dated 1.9.2003, which is filed along with the impugned Complaint. THErefore, it is submitted that the impugned Complaint is liable to be quashed.

(3.) A perusal of the impugned Complaint coupled with the order passed by the learned Magistrate, dated 1.9.2003, makes it crystal clear that the learned Magistrate has taken cognizance of the offence under Section 138 of the Negotiable Instruments Act without recording the statement of the complainant and his witnesses, if any, as contemplated under Section 200 of the Cr.P.C. and straightaway passed the impugned order dated 1.9.2003 issuing summons to the accused holding that there is a prima facie case made out against the accused. Therefore, the impugned order passed by the learned Magistrate dated 1.9.2003 issuing process is in flagrant violation and contravention of the provision under Section 200, Cr.P.C. This Court is of the considered view that this is a curable defect and as such this Court is constrained to set aside the impugned order dated 1.9.2003 passed by the learned Magistrate in C.C. No.159 of 2003 only in respect of issuing summons under Section 204, Cr.P.C. to the petitioner while confirming the said order dated 1.9.2003 passed in C.C. No.159 of 2003 taking cognizance of the offence under Section 138 of the Negotiable Instruments Act. The Learned Magistrate is directed to record the statement of the complainant under Section 200, Cr.P.C. and thereafter, to decide whether to dismiss the Complaint under Section 203, Cr.P.C. or to issue process to the petitioner under Section 204, Cr.P.C.