INDU KABRA Vs. ELIXIR INFRASTRUCTURE

JUDGEMENT

(1.) In this matter, in support of the complaint only an affidavit has been filed on behalf of the petitioner in support of the allegation made therein which also includes prosecution of the petitioner u/s 420 IPC. It is submitted that notice could not have been issued to the petitioner on the basis of an affidavit only because section 200 Cr.P.C. requires examination of the complainant and his witnesses if any, which has not been done in this case. Reliance has been made to a judgment delivered by the Supreme Court in National Small Industries Corporation Ltd Vs. State (NCT) Delhi), 2009 1 SCC 407, which requires that except in a case where public servant is the complainant, the examination of the complainant u/s 200 Cr.P.C. is mandatory. Another judgment has been relied upon by the learned Counsel for the petitioner in the case of Associated Cement Co. Ltd. Vs. Keshavanand, 1998 1 SCC 687 wherein the Hon'ble Apex Court has observed as under:-

(2.) In these circumstances perusal of the impugned order dated 9.5.09 shows that process was issued without examining the complainant. Against the impugned order, petitioner even filed a revision before the Addi. Sessions Judge, Bhopal but as per order dated 24.12.09, the petitioner could not succeed.

(3.) The revision was dismissed for a different reason that is to say that magistrate had no right to recall his order which has not been issued. In view of the judgment cited above, the petition filed by the petitioner is allowed with a direction to the magistrate to proceed further in the complaint by examining the complainant and his witnesses and then to pass an order of taking cognizance in case he finds material is there. The process issued against the petitioner is quashed. Let a copy of this order be sent to the trial court with a direction to proceed in the matter in the terms of what has been stated above.