TATA TELE SERVICES LTD Vs. STATE

JUDGEMENT

(1.) HEARD learned Advocate for the petitioner. In view of the grounds highlighted in the application, particularly in view of the fact that at the initial stage the learned Magistrate dismissed the petition of complaint under Section 203, Cr. P. C. , I am of the view that the matter can be decided without directing issuance of notice to the opposite party. The learned Advocate for the petitioner submitted that in view of Section 145 of the N. I. Act, 1881, it was open to the petitioner to give evidence on affidavit. Sub-section 1 of Section 145 of the N. I. Act makes it absolutely clear that such evidence on affidavit can be read at the time of any enquiry, trial or other proceeding. The word enquiry will be applicable so far as the present case is concerned because the learned Magistrate after taking cognizance was conducting enquiry in terms of Section 200, Cr. P. C. and as such the provision as prescribed under Special Act should have been taken into consideration. It appears that the learned Magistrate insisted on the personal appearance of the complainant (petitioner herein) on consideration of the language used under Section 200, Cr. P. C. Even in Section 200, Cr. P. C. , there is exemption clause so far as the complaint is filed by the public servant and as such, recording of evidence under Section 200, Cr. P. C. is not mandatory in connection with all cases. But so far as the present case is concerned, recording of evidence will be guided in terms of Section 145 of the N. I. Act.

(2.) UNDER these circumstances, the order passed by the learned magistrate cannot be sustained.

(3.) THE learned Advocate for the petitioner in support of his contention referred to the Single Bench decision of this High Court in M/s. Magma Leasing limited v. The State reported in (2006)2 C Cr LR (Cal) 539 where the learned judge of this Court held that acceptance of affidavit filed by the complainant pursuant to Section 145 of N. I. Act should be read as sufficient compliance as provided in Section 200, Cr. P. C. In this view of the matter, it appears that this point is already settled by this Court in the case as referred to above.