*THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU + CRL.PETITION NOs.3040 & 3042 OF 2010 % 12.04.2010 Crl.P.No.3040 of 2010 Between: # Sri A.V.R.Murthy …..Petitioner And: $ Smt.Nunna Venkata Ravanamma and another. …..Respondents. Crl.P.No.3042 of 2010 Between: # Sri A.V.R.Murthy …..Petitioner And: $ Smt.K.Anuradha and another. …..Respondents. !Counsel for the Petitioner : Smt.N(P) Anjana Devi Counsel for the respondent(1): Public Prosecutor <Gist : >Head Note: ? Cases referred: nil HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOs.3040 & 3042 OF 2010 Date: 12.04.2010 Crl.P.No.3040 of 2010 Between: Sri A.V.R.Murthy …..Petitioner And: Smt.Nunna Venkata Ravanamma and another. …..Respondents. Crl.P.No.3042 of 2010 Between: Sri A.V.R.Murthy …..Petitioner And: Smt.K.Anuradha and another. …..Respondents. HON’BLE SRI JUSTICE SAMUDRALA GOVINDARAJULU CRL.PETITION NOs.3040 & 3042 OF 2010 COMMON ORDER: These two petitions are filed under Section 482 Cr.P.C by the accused for quashing proceedings in C.C. Nos.861 of 2009 and 843 of 2009 on the file of I Additional Chief Metropolitan Magistrate, Visakhapatnam relating to offences punishable under Section 138 of Negotiable Instruments Act. The 1st respondent in both the petitions are the respective complaints in the said criminal cases. The cases were filed in the lower Court on the ground that the petitioner/accused issued respective cheques in favour of the respective complainants for the respective amounts in discharge of respective legally enforceable debts and that when the respective complainants presented them for encashment, those cheques were dishonoured. After the respective complainants filed respective complaints in the lower Court, the lower Court took cognizance of the offences against the petitioner after receiving sworn statements of the respective complainants by way of affidavits. 2) The only point on which the petitioner is seeking quashing of the criminal cases is that the lower Court did not follow the procedure prescribed by law before taking cognizance in as much as the lower Court did not record sworn statements of the respective complainants and instead received sworn affidavits of the respective complainants in lieu of the recording of their sworn statements. 3) Section 200 Cr.P.C which is relevant herein, reads as follows: “A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate: Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under Section 192: Provided further that if the Magistrate makes over the case to another Magistrate under Section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them”. This is not a case covered by either clause (a) or clause (b) of the 1st proviso to Section 200 Cr.P.C. Therefore, it is contended by the petitioner’s counsel that under Section 200 Cr.P.C, it is mandatory for the Magistrate before taking cognizance of the offence on complaint, to examine the complainant and the witnesses present, if any, on oath and to reduce substance of such examination to writing and to obtain signatures of the complainant and the witnesses, together with signature of the Magistrate. No doubt, the lower Court did not make the said exercise of examining the complainants and reducing substance thereof into writing and signed by the complainants as well as the Magistrate. Instead, the Magistrate received sworn affidavits of the complainants and took the case on file against the accused for offences under Section 138 of Negotiable Instruments Act finding that the sworn affidavit prima facie discloses the offences. 3) At this stage, it would be appropriate to refer Sections 142, 143 and 145 of the Negotiable Instruments Act (in short, the Act). Section 142(1)(a) of the Act reads as follows: “No Court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque” 4) As per Section 143 of the Act, the Magistrate has power to try cases under the Act summarily. Relevant portion of section 143(1) of the Act reads as follows: “(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), all offences under this Chapter shall be tried by a Judicial Magistrate of the First Class or by a Metropolitan Magistrate and the provisions of Sections 262 to 265 (both inclusive) of the said Code shall, as far as may be, apply to such trials”. That apart, Section 145 of the Act provides for giving of evidence of the complainant on affidavit and reading of the said affidavit as evidence in any inquiry, trial or other proceedings under Cr.P.C. Section 145(1) reads as follows: “(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973(2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code”. 5) Proceedings under Section 200 Cr.P.C are in the nature of enquiry prior to taking cognizance by the Magistrate. When Section 145 of the Act which starts with non-obstanti clause provides for taking evidence on affidavit of the complainant not only during trial, but also during enquiry or other proceedings under Cr.P.C, it cannot be said that recording of sworn statement by the Magistrate personally in his/her own hand or typed to his/her dictation is a mandatory condition for taking cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act. Examining the complainant on oath under Section 200 Cr.P.C is nothing but taking evidence during pre-cognizance enquiry or pre-registration enquiry by the Magistrate under that provision. Therefore, this Court is of the view that receiving of sworn affidavits from the complainants instead of recording sworn statement by the Magistrate before taking cognizance of offences under Section 138 of the Negotiable Instruments Act, is permissible and is not in any way contrary to the procedure prescribed by law. I see absolutely no merit in these petitions filed by the accused. 6) It is desirable that all the Judicial Magistrates of the First Class and Chief Metropolitan Magistrates in the state follow Section 145 of the Act even during pre-cognizance stage by receiving sworn affidavit instead of spending valuable time of the Court in recording sworn statements of the complainants in cases arising under the Negotiable Instruments Act. 7) Accordingly, both the petitions are dismissed. ________________________________ SAMUDRALA GOVINDA RAJULU,J. April , 2009 NOTE: L.R. Copy to be marked. (B/o)KSH