HON’BLE SRI JUSTICE RAJA ELANGO CRIMINAL PETITION No.538 of 2010 ORDER: This Criminal Petition is filed by the petitioner-accused, under Section 482 Cr.P.C., seeking to quash the order dated 04.01.2010 passed by the Addl. Judicial Magistrate of First Class, Palakol, West Godavari District, in C.C.No.142 of 2009. Heard and perused the record. The order impugned in this criminal petition runs as follows: “Complainant called absent. Condoned on petition. The accused refused to accept summons and they were returned. Hence, issue NBW.” The main grievance of the petitioner is that he did not receive any summons in the case and at no point of time he refused to receive the summons and having observed the absence of the complainant, the trial Court ought not to have issued NBW and the same is not warranted in facts and circumstances of the case, and that the trial Court without examining the complainant on oath and recording his sworn statement, took cognizance of the offence punishable under Section 138 of the Negotiable Instruments Act (for short “the Act”), contrary to the provisions of Section 200 Cr.P.C. If the Magistrate wants to take cognizance of an offence on a complaint, he shall first examine the complainant on oath and record his sworn statement and then only he is at liberty to take cognizance of the offence. Whereas, in the present case, the learned Magistrate, without examining the complainant on oath and recording his sworn statement, took cognizance of the offence under Section 138 of the Act, placing reliance on the affidavit filed by the complainant, which is evident from the docket order dated 19.06.2009 passed by him. Therefore, this Court is of the view that taking of cognizance by placing reliance on the affidavit filed by the complainant is bad in law and the cognizance taken by the learned Magistrate is liable to be set aside and the NBW issued against the petitioner is also liable to be recalled. Accordingly, the Criminal Petition is allowed and the NBW issued against the petitioner is hereby recalled. Further, the cognizance taken by the learned Magistrate is hereby set aside and the learned Magistrate is directed to proceed with the case, in accordance with law. Miscellaneous petitions, if any, filed shall stand closed. _____________ RAJA ELANGO, J 13th September, 2011 cbs HON’BLE SRI JUSTICE RAJA ELANGO Criminal Petition No.538 of 2011 (Allowed) 13th September, 2011 cbs