PRAKASH CHAND Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) In this criminal miscellaneous petition, the petitioner has sought to challenge the order dated 18.7.2007 passed by the learned Additional Chief Judicial Magistrate No. 10, Jaipur City, Jaipur, whereby he had taken cognizance against him for the offences under Section 138 of the Negotiable Instruments Act, 1881. Being aggrieved of the said order, the petitioner preferred a revision petition but the same was dismissed by the learned Additional District and Sessions Judge (Fast Track) No.4, Jaipur City, Jaipur on 13.5.2009 and the order of the learned Magistrate was affirmed.

(2.) The relevant facts for the purpose of the present petition are that a complaint came to be filed by the respondent No.2 on 16.7.2007 for punishing the petitioner as the cheque issued by him was dishonoured and further, it was prayed that double the amount of cheque may be paid to him from the accused, by way of compensation. Subsequently on 18.7.2007, the complainant- respondent No.2 filed an affidavit deposing that he is the complainant in this case and the contents of the complaint are true as per his personal knowledge and belief as well as the information given by his counsel. On 18.7.2007 itself, the learned Magistrate had passed the order impugned, taking cognizance and issuing process against the petitioner and the case was posted for 1.9.2007. The learned Magistrate has noted in the order that the complainant, after filing an affidavit, has closed his evidence. Further, the arguments for cognizance were heard and it has been stated in the order impugned that the complainant, in his evidence, has reiterated the facts given in the complaint and he also got the documents exhibited. It has also been mentioned in the order impugned that on the basis of oral and documentary evidence of the complainant, it is established that the cheque was given and the same was dishonoured.

(3.) It has been contended by the counsel for the petitioner that the order of cognizance passed by the learned Magistrate is illegal and contrary to law. According to him, there was no evidence on record on behalf of the complainant and, as such, the learned Magistrate has erred in passing the impugned order of cognizance. According to him, even the affidavit filed by the complainant is not proper as it does not satisfy the provisions of Section 3 of the Evidence Act. In other words, he has submitted that the said affidavit, filed by the complainant, does not come within the definition of affidavit as per the relevant provisions of law. Furthermore, the counsel for the petitioner has submitted that even the order passed by the learned Revisional Court is erroneous and illegal for the same reasons as submitted by him in respect of the order of the learned Magistrate.