SANJAY Vs. DEEPAK

JUDGEMENT

(1.) By this application under Section 482 of the CrPC the applicant Sanjay has challenged the order dated 139.2010 passed by the Judicial Magistrate Class-1, Shajapur in Criminal Case No. 40 of 2010 rejecting the application of the applicant to recall the order taking cognizance of the complaint filed by the complainant.

(2.) The very short point involved in the application is the fact that the learned Judicial Magistrate has taken cognizance upon a complaint under Section 200 of the CrPC on the basis of the documents and the affidavit filed by the complainant. Counsel for the applicant has brought to the notice of the Trial Court that the cognizance under the circumstances could not be taken since it was mandatory under Section 138 of the Negotiable Instruments Act that the complainant has to be examined on oath. The Trial Court however, has taken cognizance and it was not possible to recall an order already issued by it since there no powers of review with it. Counsel has placed reliance before me in the case of Banshilal v. Abdul Munnar, whereby the Court has held that it was mandatory to examine the complainant before directing the issuance of process and in such a case under the inherent powers of the High Court interference is called for. Hence, the impugned order was quashed and the Trial Court was directed to make an enquiry if it deem fit under Sections 200 and 202 of the CrPC to ascertain as to whether there ' exists sufficient ground for proceeding against the applicant for offence under Section 138 of the Negotiable Instruments Act. Hence, counsel prayed for quashment of the impugned order.

(3.) In view of the above, I find that the applicant needs to be allowed in part; on the basis of the case of Banshilal there is substance in the contentions put forth by the counsel for the applicant. Hence it is directed the impugned order dated 13.9.2010 is set aside. However, it is directed that the Trial Court shall be at liberty to make an inquiry, under Sections 200 and 202 of the Code, to ascertain as to whether there exists sufficient ground for proceeding against the applicant in respect of the offence under Section 138 of the Negotiable Instruments Act.