FIRM RAMCHARAN NAND KISHORE Vs. HARI SHANKAR GAUR

JUDGEMENT

(1.) The petitioners have impugned the order dated 29th August, 2000, whereby the Additional Chief Judicial Magistrate No. 5, Jaipur City, Jaipur took the cognizance of the offence under Section 138 of Negotiable Instrument Act and proceeded against the petitioners.

(2.) Heard learned counsel for both the parties and carefully perused the relevant material on record including the impugned order.

(3.) Learned counsel for the petitioners canvassed that the learned trial court sans recording the statement of the complainant as also the other witnesses, took cognizance merely on the basis of complaint and issued summons for the appearance of the accused persons in the Court on 21st November, 2000. As per the scheme of Criminal Procedure Code for the trial of the case on a complaint case, it is mandatory for the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present if any, but in the instant case, learned trial court did not examine the complainant and merely on the basis of complaint, took the cognizance of the afore-stated offence and summoned the accused. Hence, the impugned order is contrary to law and perverse, which deserves to be set aside.