M. KOTESWARA RAO Vs. STATE AND ORS.

JUDGEMENT

(1.) This criminal petition is filed by the petitioner/Accused under Sec. 482 Cr.P.C to quash the proceedings in C.C. No. 412 of 2011 on the file of V Additional Munsif Magistrate Court, Guntur which is the private complaint filed by the 2nd respondent for the offence punishable under Sec. 138 of the Negotiable Instruments Act, 1881.

(2.) The learned Magistrate taken cognizance pursuant to the private complaint after accepting the sworn statement affidavit of the complainant. The contentions urged in seeking to quash the cognizance and issuing of the summons by the learned Magistrate against the accused, in the petition are that the Magistrate ought not to have been taken cognizance for no territorial jurisdiction and erred in condoning the delay of five days and erred in taking cognizance on the affidavits instead of recording sworn statements. So far as the jurisdiction aspect concerned, there is no quarrel on the proposition existing prior to the Dasarath Roop Singh V. State of Maharashtra : 2014(3) ALT (Crl.)(SC) 129 and the subsequent ordinance No. 6/2015, dated 15.06.2015 and further extended which says not only the place where from the cheque issued but also the place where the cheque presented dishonoured equally confers jurisdiction and the ordinance gives retrospective effect. Coming to the other contention regarding delay condonation concerned, the very Sec. 142 of the Negotiable Instruments amended by Act 55/2002 with effect from 06.02.2003 makes a provision statutorily for requiring the Magistrate to take cognizance after expiry of one month period if there is sufficient cause shown for the delay.

(3.) It is not the case that from peculiar facts by bringing anything brought to the notice, there is no sufficient cause. Once the learned Magistrate properly exercised the judicial discretion in condoning the delay invoking the statutory provision supra, there is nothing for this Court to suit against. Coming to the core contention of taking cognizance only on affidavit not by recording sworn statement, it is not in dispute that Sec. 145 of the Negotiable Instruments Act introduced by the Amended Act in the Act supra containing two sub -sections of which subsection (2) says the Court may, if it things fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein. The scope of this provision is well considered in Indian Bank Association V. Union of India : (2014)5 SCC 590. Coming to the scope of Sec. 145(1) of the Negotiable Instruments Act, undisputedly it commences with the non -obstante clause of whatever contained in Cr.P.C, for evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. It is not only for pre -cognizance enquiry but also for other proceeding irrespective of for pre -cognizance as per Sec. 200 to 202 Cr.P.C. It provides to record sworn statement, when Sec. 145 of the Negotiable Instruments Act provides to accept affidavit in evidence, the cognizance taken by the Magistrate per se no way shown how unsustainable.