S THANGAVELU Vs. K DURAISAMY

JUDGEMENT

(1.) THE petitioner is an accused for an offence punishable under Section 420 IPC as per the private complaint preferred before the learned Judicial Magitrate No.III, Erode. THE learned Judicial Magistrate, after recording sworn statement and statements of witnesses, passed an order impugned taking cognizance of the offence punishable under Section 420 IPC as well as Section 138 of the Negotiable Instruments Act.

(2.) THE learned counsel for the petitioner submits that it is the positive case of the complainant that though the cheque has been issued by the petitioner, the account was not maintained by him and his signature also differs. Under such circumstances, offence punishable under Section 138 read with 142 of the Negotiable Instruments Act will not be maintainable and the learned Magistrate has erroneously taken cognizance of the offence under Section 138 read with 142 of the Negotiable Instruments Act and seeks to quash the cognizance taken as against the offence under Section 138 read with 142 of Negotiable Instruments Act alone.

(3.) I am of the considered opinion that the learned Magistrate cannot take cognizance suo motu an offence without any pleadings and materials. Prima facie materials are not available in the case to constitute an offence under Section 138 of the Negotiable Instruments Act. However, the cognizance taken for offence punishable under Section 420 IPC is not disputed by the petitioner/accused.