Point of Law: Negotiable instruments – Private complaint - mandatory requirement of recording sworn statement before taking cognizance by accepting only an affidavit of the complainant – Not permissible

ORDER :

1. The short question that falls for consideration in this petition filed under Section 482 of Cr.P.C. is whether in a private complaint filed under Section 200 of Cr.P.C., not involving commission of the offence punishable under Section 138 of the Negotiable Instruments, Act, 1881, the learned JMFC can substitute the mandatory requirement of recording sworn statement before taking cognizance by accepting only an affidavit of the complainant?

2. The petitioners who are accused Nos.1 to 23 are praying for quashing of all further proceedings in CC No.789/2017 on the file of the learned Additional Civil Judge and JMFC, Koppal, for the offence punishable under Section 500 of IPC.

3. The learned JMFC by order dated 10/10/2017 has taken cognizance for the offence punishable under Section 500 of IPC and pursuant to the same, he has directed issue of process to the petitioners herein. In the said order, the learned JFMC has noted that he had perused the complaint, documents and also statements of witnesses.

4. The learned counsel for the petitioners submits that the learned JMFC has not recorded the sworn statement of either the complainant or any other persons in support of the private complaint as contemplated under Section 200 of Cr.P.C.; but on the other hand, he has accepted and acted upon the affidavit of the complainant-Galeppa. He therefore submits that the said procedure adopted by the learned JMFC is entirely foreign to the scheme of Sections 200 to 204 of Cr.P.C. and, accordingly, the cognizance taken by the learned JFMC is without jurisdiction and therefore, it is liable to be set aside.

5. I have heard the learned counsel for the respondent-complainant.

6. A perusal of the petition papers show that a private complaint was presented before the learned Additional JMFC, Koppal, on 8/7/2017 by the respondent herein and it was adjourned to 8/8/2017. The certified copy of the order sheet dated 8/8/2017 shows that the complainant was present on that day and he was examined as PW1 and Exs.P1 to P18 were marked. The contention of the learned counsel for the petitioners is that infact complainant was not examined as PW1, but only his affidavit was taken in lieu of his sworn statement, and he has produced the certified copy of the same at page 24 and 25 of the petition papers.

7. A perusal of the certified copy of the affidavit shows that it was sworn to before the Chief Ministerial Officer of the Court of Additional JMFC, Koppal, on 28/6/2017 which is also the date on which the private complaint seems to have been signed by the petitioner as could be seen from the certified copy which is at page 22 and page 23 of the petition papers. Thereafter, the learned JMFC has passed a detailed order on 10/10/2017 taking cognizance for offence punishable under Sections 500 of IPC and has issued process to the present petitioners. Even though there is a reference in the impugned order that he has considered the statement of witnesses examined before him, it is evident from the above that no such examination of witnesses/recording of sworn statements had been undertaken by him as mandated under Section 200 of Cr.P.C. It is useful to refer to Section 200 of Cr.P.C.

“200. Examination of complainant. 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 compl