Order 21/01/2025

1. Heard the learned counsel for the petitioner, learned Public Prosecutor and the learned counsel for the complainant- respondent as well as gone through the niceties of the case.

2. True it is that well before launching of the prosecution under Section 138 of Negotiable Instrument Act, the petitioner had lodged an FIR No.10/10 on 11.02.2010 in which after conducting thorough investigation, the offence was found proved against the accused - Mohsin @ Pinkiyo, Rajesh, Shoeb @ Guddam, Sharafat @ Saro, Smt. Aalam Aara, Raseed Khan. Learned counsel pleads that since the allegation of the petitioner regarding forcibly taking (Downloaded on 22/01/2025 at 09:53:44 PM) [2025:RJ-JD:3737] (2 of 2) [CRLMP-551/2012] away the cheque in question from his possession is found true during investigation and the cheques were directed to be stopped from encashment, therefore, based on the dishonourment of the same cheques, he cannot be prosecuted; may be a good argument and may lure this Court, however, it is well nigh proposition of law that the probable defence of the accused cannot be taken into account at the time of hearing on the question of taking cognizance of the offence. The word "cognizance" is not defined anywhere in the Code of Criminal Procedure , however, taking guidance from the plathero of judicial pronouncement on this aspect, it can be understood that taking cognizance would mean proceeding further in a criminal matter after applying formal application of mind. Of course, the mind has to be applied judiciously.

3. In this view of the matter, the instant misc. petition is disposed of.

4. The petitioner would be at liberty to take their defence before the trial Court at appropriate stage.

5. Needless to say that the learned trial Court shall give due weightage to the defence taken and the submissions made in this regard at appropriate stage before concluding the trial finally.

6. Stay petition also stands disposed of.

(FARJAND ALI),J 1-divya/-

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