RESERVED JUDGMENT IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL CRIMINAL MISCELLANEOUS APPLICATION No. 646/2007 (Under Section 482 of the CrPC) Sanjeev Kashyap …….Applicant Versus Sachin Mohan ……Respondent Smt. S.K. Shandilya, Advocate, for the applicant. Mr. M.K. Goyal, Advocate, for the respondent. 2nd September, 2011 Hon’ble Servesh Kumar Gupta, J. By way of this Criminal Miscellaneous Application, prayer has been made to quash the cognizance order dated 20.1.2007, passed by the Judicial Magistrate, Hardwar in Complaint Case No. 612/2007(Old No. 2507/2006), Sachin Mohan v. Sanjeev Kashyap, under Section 138 of the Negotiable Instruments Act, 1881. 2. Having heard learned Counsel for the parties, it appears that Sachin Mohan filed a complaint against the applicant Sanjeev Kashyap for default of payment of a cheque worth rupees one lakh. The said cheque was dishonoured by the bank because of lack of sufficient funds in the account of the drawer of the cheque. Respondent Sachin Mohan gave a notice to the applicant as required under Section 138(b) of the NI Act. When the payment was not made within the stipulated period, he filed the said complainant on 10.11.2006. 3. At the time of filing of the aforesaid complaint, the complainant simultaneously filed an affidavit under Section 200 CrPC corroborating the facts that were averred in the complaint. Besides the cheque, the memo of return of the said 2 cheque unpaid by the bank was also filed on the same day under Section 200 CrPC. On 20.1.2007, after hearing the arguments of the complainant and after having gone through the affidavit and other evidence stated above, the learned Magistrate passed the impugned cognizance order. 4. The applicant Sanjeev Kashyap has challenged the validity of the affidavit, which was filed by the complainant under Section 200 CrPC at the time of filing the complaint itself. This affidavit was drafted and signed by the deponent Sachin Mohan on 10.11.2006. But strangely enough, it was sworn in on 9.11.2006, as is written at the end of the averments made in the said affidavit. Thus, the affidavit was sworn in a day before filing of the said complaint. Though the provisions contained under Section 145 of the NI Act permit the complainant to give his evidence by way of affidavit, but the same do not allow the complainant/deponent to swear the affidavit one day prior to its drafting and also putting in his signatures therein. Such a document is not at all admissible in evidence under Section 200 CrPC, rather it indicates towards the malpractice complete unmindfulness of the Oath Commissioner, who has put in his signatures in the said affidavit verifying the swearing of the deponent Sachin Mohan. Therefore, the impugned cognizance order, which is based on the said affidavit, is vitiated and cannot be allowed to sustain. 5. For the reasons recorded above, the cognizance order dated 20.1.2007 is hereby quashed. However, the complaint filed by Sachin Mohan against Sanjeev Kashyap may proceed further if the complainant examines himself afresh under Section 200 CrPC. The petition is disposed of accordingly. 3 6. Registry is directed to inform the court concerned accordingly. (Servesh Kumar Gupta, J.) 2.9.2011 Prabodh