GAYATRI DEVI TRADERS Vs. STATE OF ANDHRA PRADESH

JUDGEMENT

(1.) The Petitioners 1 and 2/A-1 and A/2 are accused of offence punishable under Section 138 of the Negotiable Instruments Act (in short, the Act) in C.C. No. 471 of 2007 on the file of II Additional Chief Metropolitan Magistrate, Visakhapatnam. The only point raised in this petition is with regard to procedure adopted by the lower Court before taking cognizance of the case for the above offence by way of receipt of evidence affidavit of the complainant/2nd Respondent instead of recording sworn statement of the complainant by the Court and obtaining signature of the complainant therein. This Court previously held in A.V.R. Murthy V. Nunna Venkata Ravanamma.,2010 1 ALD 990 that such procedure adopted by the Magistrate before taking cognizance of the case for offence punishable under Section 138 of the Act is valid and legal in view of specific provision by way of Section 145 contained in the Act. The Petitioners' counsel contended that the above decision rendered by this Court is liable to be reconsidered by this Court in view of prior pronouncements of the Supreme Court.

(2.) Sheet anchor of the Petitioners' contention is National Small Industries Corporation Limited v. State(NCT of Delhi), 2009 1 SCC 407 The question decided by the Apex Court therein was not pre-cognizance enquiry or pre-summons enquiry in a case relating to offence punishable under Section 138 of the Act. The question decided therein was that where a incorporeal body is the payee and the employee who represents such an incorporeal body in the complaint is a public servant, he being the defacto-complainant, Clause (a) of the proviso to Section 200 Code of Criminal Procedure will be attracted and consequently the Magistrate need not examine the complainant and the witnesses (see para 20 of the report). While deciding that question, the Supreme Court made references to not only provisions of the Act, but also the Code of Criminal Procedure relating to procedure to be adopted by the criminal Court before taking cognizance of a case for offence punishable under Section 138 of the Act in case the complaint is presented by a Government servant representing an incorporeal body. The Supreme Court had no occasion either in National Small Industries Corporation Limited (1 supra) or in any other reported decision to consider effect of Section 145 of the Act on Section 200 Code of Criminal Procedure.

(3.) Section 200 Code of Criminal Procedure reads as follows :