KISHAN LAL Vs. STATE OF RAJASTHAN & ANR.

JUDGEMENT

(1.) BY this petition, a challenge is made to the order dt. 01.08.2009. The case has chequered history inasmuch as on filing of complaint for offence u/s. 138 of Negotiable Instruments Act (for short "the Act"), the order of cognizance was passed taking into consideration affidavit filed by complainant. The revision petition was filed by accused to challenge the order of cognizance. It was precisely on the ground that a complaint filed u/s. 190 Cr.P.C. needs to be dealt with as per provisions of Cr.P.C. itself as provisions of Negotiable Instruments Act are not having over -riding effect. The order of cognizance could have been after recording statements of complainant u/s. 200 Cr.P.C.

(2.) IN a petition filed by the non -petitioner earlier titled as Prakash Chand v. State of Rajasthan & Anr., S.B. Criminal Misc. Petition No. 1081/2009, decided on 22.07.2009, a direction was given that as and when complaints are filed u/s. 138 of the Act, it should follow mandate of Section 200 Cr.P.C. In view of the above, order of cognizance should be passed after recording statements of complainant u/s. 200 Cr.P.C. After decision on criminal misc. petition aforesaid at the instance of accused -non -petitioner herein, court below treated complaint as dismissed in ignorance of the fact that what was mandated by this court is requirement of statement u/s. 200 Cr.P.C. before cognizance. The petitioner -complainant accordingly made a request to record his statement u/s. 200 Cr.P.C. for taking cognizance. The request aforesaid was turned down on the ground that order of cognizance earlier passed has already been set aside by High Court in the case of Prakash Chand (supra). It is without considering the fact that order of cognizance was set aside as it was without recording statement of complainant u/s. 200 Cr.P.C. It was by court who took cognizance on the affidavit filed by petitioner -complainant. For that default, a complainant cannot be made to suffer or his complaint cannot be thrown, rather final directions in Para 19 of the judgment in Prakash Chand (supra) needs to be considered. Para 19 of the judgment in Prakash Chand (supra) is quoted hereunder:

(3.) IN the light of aforesaid, impugned order is set aside. The court below is directed to proceed with the matter from the stage of filing of the complaint, thus record statement of the complainant u/s. 200 as mandated by this court in this case on a misc. petition filed by non -petitioner. It may be clarified that the judgment in Prakash Chand (supra) passed by this court was further considered in the subsequent judgment in the case of Rakesh Sharma v. State of Rajasthan & Anr., S.B. Criminal Misc. Petition No. 285/2010, decided on 2nd April, 2010 holding that cognizance can be taken even on submission of affidavit by complainant. With the aforesaid, revision petition stands disposed of. Record of this case may be sent back to the court below immediately.