HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.2719 OF 2010 Dated : 16.07.2010 Between : D.V.Suresh Babu …. Petitioner-Accused a n d 1) T.Rajender Singh 2) The State of A.P. … Respondents HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.2719 OF 2010 ORDER: This criminal petition under section 482 of the Code of Criminal Procedure is filed by the petitioner-accused seeking to quash the proceedings in C.C.No.269 of 2009 on the file of the XX Additional Chief Metropolitan Magistrate, Hyderabad, for the offence punishable under Section 138 read with 149 of Negotiable Instruments Act. The complainant filed private complaint under Section 200 read with 190 of the Code of Criminal Procedure before the IX Additional Chief Metropolitan Magistrate at Hyderabad against the accused alleging that at the request of the petitioner, he gave hand loan of Rs.55,000/- to the petitioner in the month of June, 2005. But, in spite of repeated demands, petitioner failed to repay the amount and finally he issued cheque bearing No.036275 dated 15.10.2005 for Rs.55,000/- drawn on A.P.Mahesh Co-Operative Urban Bank Limited, Chikkadpally, Hyderabad, which was dishonored on presentation with a memo dated 24.10.2005 for the reason ‘funds insufficient’. In spite of issuance of legal notice, petitioner-accused failed to repay the amount covered by the above said cheque. Hence, he filed the present complaint. After filing of the above said complaint, complainant filed sworn affidavit in SR No.2315 of 2006. Basing on the same, the learned Magistrate took cognizance of the case for the offence punishable under section 138 of N.I. Act. Aggrieved by the said taking of cognizance, the present criminal petition is filed by the petitioner- accused. Heard. Learned counsel for the petitioner submitted that cognizance of a private complaint filed under Section 200 Cr.P.C. should be taken only on the basis of written complaint along with sworn complaint deposed in the concerned Court. Learned counsel for the first respondent also stated that the complainant has filed sworn statement, but he has not given sworn statement in the Court. Now, the present settled position is to take cognizance of any offence against the complaint filed under Section 200 Cr.P.C. the complainant should examine himself and should depose the facts of the case before the Court prior to taking cognizance. In view of the same, the cognizance taken by the learned Magistrate in the present case is liable to be set aside. Accordingly, the cognizance taken by the learned Magistrate is set aside. In any event, the first respondent-complainant is at liberty to approach the concerned Court and give sworn statement afresh before the Court and the learned Magistrate is directed to give an opportunity to the respondent-complainant to give his sworn statement in the Court. After recording such sworn statement, learned Magistrate is directed to proceed in accordance with law. With above observation, the Criminal Petition is disposed of. ________________________ JUSTICE RAJA ELANGO Dated : 16.07.2010 sur