The complaint filed under Section 138 of the Negotiable Instruments Act forms part of the record and is not required to be marked as exhibit. The judgment in the case of G. Premdas V. Venkataram, 2001 (1) KCCR 437, is no more good law.

( 1 ) THIS revision petition is referred under Section 9 of the Karnataka High Court Act by a learned single judge (msrj) seeking clarification as to the judgment rendered in the case of G. Premdas V. Venkataram (2001 (1) KCCR 437) incidentally rendered by one of us (srbmj) and the following question is framed to answer the reference:"whether the complaint filed under Section 138 of the Negotiable Instruments Act forms part of the record? Or, whether the same has to be marked as an exhibit as held in the said judgment and whether mere non- marking of the complaint is fatal?"

( 2 ) THE facts and reason for reference are that : the respondent-complainant filed a complaint against the petitioner/accused before the court of xii additional c. m. m. , at Bangalore city for the offence punishable under Section 138 of the N. I. act alleging that in connection with loan of Rs. 1. 95. 000/- availed by him on 14-1-1997, the petitioner / accused had issued 13 cheques, each for a sum of Rs. 15,000/- besides executing pronote dated 21-1-1997. When five cheques at exs. P-4 to 8 were presented for encashment, they were dishonoured as per the bank memos at exs. P-9 and 10 as funds not arranged and hence, the respondent / complainant got issued legal notice dated 25-8-1997 as per Ex. P-11, which was served on the petitioner/accused. But, in spite of that, he did not pay the amount due under the said cheques. Consequently, the respondent complainant filed complaint before the learned magistrate for the offence punishable under Section 138 of the n. I. Act, which was registered as c. C. No. 357/1998 and ultimately ended in the conviction of the petitioner/accused under Section 255 (2) of cr. P. C. , by which he had been sentenced to pay fine of Rs. 5. 000/-, and in default to undergo s. I. For six months, besides to pay compensation of Rs. 75. 000/- to the respondent complainant. That matter was unsuccessfully taken up before the sessions court in cri. A. No. 503 / 2000 by the petitioner / accused and that appeal came to be dismissed on 24-12-2001. Hence, he approached this court in the present revision petition under sections 401 r/w. 397 of cr. P. C. , challenging the order passed by the learned magistrate and also the order passed by the sessions court. When the revision petition was taken up for consideration, the learned counsel for the petitioner relying upon the decision in the case of g. Premdas (2001 (1) KCCR 437) (supra) contended that as even in this case, the complaint is not marked by the complainant and as such non-marking of the complaint as exhibit is fatal to the complainant's case. As such he is entitled for acquittal. The learned single judge (msrj) was not inclined to subscribe to the view expressed and law declared in g. Premdas's case and as such the present reference.

( 3 ) AS the question raised is of general importance, we had requested Sri S. G. Bhagavan, learned Advocate to assist the court as amicus curiae.

( 4 ) WE have also heard the learned counsel appearing for the petitioner/accused and also the learned counsel for the respondent/ complainant.

( 5 ) IT was submitted by sri. S. G. Bhagavan, advocate-learned amicus curiae that the complaint presented before court under Section 200 of cr. P. C. , is a part of court record, which could be looked into and considered even without being marked as exhibit since it is not a document to say that it could not be looked into or considered without being marked as exhibit. According to him, only a document, relied on by a party. Cannot be considered or looked into unless it is marked as exhibit, but the same cannot be said with regard to complaint filed in the court. This is because, according to him, the complaint will be presented by the complainant in person in the court before the learned magistrate under his signature and as such, it is a part of the court record though, of course, on the basis of such complaint, criminal law will be set into motion. In thi