NELLAIAPPAN Vs. SAMUVEL

JUDGEMENT

(1.) AN important question of law has arisen for consideration in the above two petitions. Both in STC.No.1155 of 2005 and 1180 of 2005, the petitioner is the sole accused and the respondent is the complainant. The offence alleged against the petitioner in both the cases is one under Section 138 of the Negotiable Instruments Act. Seeking to quash the same, the petitioner has come forward with these petitions.

(2.) THOUGH several grounds have been raised in these petitions, the learned counsel for the petitioner mainly urges that the order of the learned Magistrate issuing summons to the petitioner to appear is illegal and therefore, the entire case is liable to be quashed. According to him, though the learned Magistrate took cognizance of the offence, he did not record any statement of the complainant as required under Section 200 Cr.P.C. or the statement of witnesses as required under Section 202 Cr.P.C. before coming to the conclusion that it is a fit case where process has to be issued for the appearance of the petitioner under Section 204 Cr.P.C.

(3.) A thorough reading of the said judgment of the Honourable Supreme court would make it manifestly clear that cognizance is taken as soon as the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. On such perusal, if he finds that there are prima facie materials to show that offence has been committed, then he shall proceed to record the statement under Section 200 Cr.P.C. On the contrary, if he finds that there is no offence made out, the learned Magistrate should return the complaint thereby refusing to take cognizance.