HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.7267 OF 2010 Dated : 28.07.2010 Between : Karra Raju …. Petitioner-Accused a n d 1) A.V.Krishna Rao 2) The State of A.P. … Respondents HONOURABLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.7267 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 S.T.C.No.202 of 2005 on the file of the Judicial First Class Magistrate, Palakol, West Godavari District, for the offence punishable under Sections 138 and 142 of Negotiable Instruments Act. The complainant filed private complaint before the Judicial Magistrate of First Class, Palakol, West Godavari District, alleging that the accused and his wife borrowed a sum of Rs.2 lakhs from him on 16.08.2003 agreeing to repay the same with interest @ 24% per annum duly executing a promissory note in favour of the complainant. But, the accused failed to pay the amount inspite of repeated demands of the complainant. At last, on 20.08.2005 accused issued a cheque bearing No.436929 drawn on The Vysya Bank Ltd., Palakol Branch for Rs.50,000/- towards part satisfaction of the debt, which was dishonoured due to insufficient funds. In spite of issuance of statutory legal notice also accused failed to pay the amount. Hence, the complainant filed the present complaint. After filing the above said complaint, complainant filed sworn affidavit in SR No.5141 on 26.09.2005. Basing on the same, the learned Magistrate took cognizance of the case for the offence 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 statement of the complainant deposed in the concerned Court. Now, the present settled position is that prior to taking cognizance of any offence against the complaint filed under Section 200 Cr.P.C. the complainant should examine himself on oath and should depose the facts of the case before the Court. 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 further in accordance with law. With above observation, the Criminal Petition is disposed of. ________________________ JUSTICE RAJA ELANGO Dated : 28.07.2010 sur