SUSANTA KUMAR MOHARANA Vs. RAMESH KUMAR BHATTA

JUDGEMENT

(1.) OPP. Party as complainant has filed I. C. C. Case no. 113 of 2004 before the Learned S. D. J. M. , Nayagarh alleging offence under Section 138 of the Negotiable Instruments Act (in short, "the N. I. Act") against the petitioner. Learned S. D. J. M. , Nayagarh after recording statements of the complainant under Section 200 Cr. PC. took cognizance of that offence and directed issue of process against the petitioner. Aggrieved , the petitioner has filed the present application under Section 482 of the Cr. PC. for quashing the said order dated 27. 9. 2004 passed by the learned S. D. J. M. , Nayagarh.

(2.) MR. J. Katikia, Learned Counsel for the petitioner submitted that the impugned order of cognizance is unsustainable as the statement of the complainant recorded under Section 200, Cr. P. C. does not reveal the essential ingredients of the offence under Section 138 of the N. I. Act. According to him, unless prima-facie case is revealed from the statements of the complaint and witnesses recorded under Section 200 and 202, Cr. P. C. , cognizance of the offence cannot be taken even though allegations are borne on the complaint petition. In support of his contention he relied on the decisions in N. Harihar Iyer Vrs. State of Kerala, 2000 Cri. L. J. 1251, nelson Motis Vrs. Union of India and another, AIR 1992 SC 1981; State of uttar Pradesh Vrs. Union of India and another, AIR. 1963 SC 946; commissioner of Agricultural Income-tax, West Bengle Vrs Keshab Chandra mandal, AIR 1950 SC 265; S. A. Najundeswara Vrs. Varlak Agrotech (p)Ltd. , (2003) 25 OCR 721. He also submitted that the order of cognizance is otherwise bad in law because of non-service of statutory notice on the petitioner under Section 138 (b) of the N. I. Act and in this regard relied on the case of V. Rajakumari Vrs. P. Subbrarama Naidu and another , (2004)29 OCR (SC) 866.

(3.) MR. B. N. Mohanty, Learned Counsel for opp. party, on the other hand, submitted that in view of Sections 145 and 146 of the N. I. Act, recording of statement of the complainant under Section 200, Cr. P. C. is not mandatory and that the existence of prima facie case for the offence under Section 138 of the N. I. Act can determined from the contents of the complaint petition and documents. He submitted that Section 200, Cr. P. C. simply contemplates for recording of the summary of the initial statement made by the complainant and such summary recorded is to be read with the contents of the complainant petition to find out as to whether prima facie case for the alleged offence has been made out. In support of this contention he relied on the cases of S. A. Najundeswara Vrs. Varlak agrotech. (P) Ltd. (Supra); Prafulla Kumar Samal alias Prafulla Samal and others Vrs. State of Orissa and another, (2003) (Supp.) OLR 843. Mr. Mohanty further submitted that the issue relating to proper service of notice under Section 138 (b) of the N. I. Act is not required to be decided at the preliminary stage of the case, but it is to be decided at the stage of trial. It is also contended that the opp. party mentioned categorically in the complaint petition that the notice was sent to the petitioner by Regd. Post and A. D. was also received back after due service on the petitioner and in the face of such clear averments cognizance of offence under Section 138, n. I. Act cannot be refused simply because the fact of such service of notice is not specifically noted in the summary of the statement of the complainant recorded under Section 200, Cr. P. C. In this regard, Mr. Mohanty relied on (2004) 29 OCR (SC) 866 (supra); (2000) 18 OCR 398 (Biswaranjan Pattnaik Vrs. Tee, Finance Company Ltd. , Represented by its managing Director Bhubaneswar); (2001) 18 OCR 733 (Subrata Kumar dash Vrs. Pradeep Kumar Ram); (1999) 17 OCR (SC) 555 (K. Bhaskaran vrs. Sankaran Vaidhyan Balan and another ).