K.J. Rohee, J.

The issue which has been referred to this Bench is, Is it mandatory for the Magistrate to examine the complainant who has filed complaint under Section 138 of Negotiable Instruments Act with affirmation as regards truthfulness of the facts mentioned in the complaint before issue of process under Section 200 of Cr. P. C.?.

2. It so happened that H.H. Maharaja Udaysingh Bhonsle s/o late H.H. Maharaja Pratapsinghrao Bhonsle resident of Junior Bhonsla Palace, Mahal, Nagpur ( hereinafter referred to as .the complainant.) filed a complaint in writing on 21.4.2006 against Maharaja Developers and Vijay Tulsiramji Dangre (hereinafter referred to as .the accused.) under Section 138 of the Negotiable Instruments Act (hereinafter referred to as .the N.I. Act.) on account of dishonour of cheques issued by the accused in favour of the complainant and his sister. The said complaint contained a 3 solemn affirmation by the complainant at the foot of it. The complainant also filed certain documents along with the complaint. On perusal of the complaint and the documents filed with it, the learned Magistrate was satisfied that there was prima facie case to proceed against the accused. Hence by order dated 28.4.2006 he directed issuance of process against the accused under Section 204 of Cr. P. C. for the offence punishable under Section 138 of the N.I. Act.

3. The accused challenged the order of issuance of process by preferring Criminal Revision No.624/2006 on the ground amongst others that there was no proper inquiry into the complaint as laid down in Section 200 to 202 of Cr. P. C. (Chapter XV), that there was no verification of the complaint by the Magistrate and the issuance of process was erroneous. The learned 3rd Ad hoc Additional Sessions Judge rejected the revision by order dated 24.8.2006.

4. Having been aggrieved by the said order, the accused moved an application under Section 482 of the Cr. P. C. for quashing the complaint as well as the order of the Magistrate dated 28.4.2006 for issuance of process and the 4 order of Revisional Court dated 24.8.2006 rejecting the revision.

5. The said matter was heard by one of us (Justice S.R. Dongaonkar). The learned Single Judge found that there appears to be conflict of views about the legal position with regard to necessity of recording verification statement of the complainant by the Magistrate when the complaint under Section 138 of the N.I. Act is filed with affirmation in two Single Bench decisions viz. Mamatadevi Prafullakumar Bhansali .vs. Pushpadevi Kailashkumar Agrawal . 2005 (2) M h.L.J . 1003 and M/s Nova Electricals, Jalgaon .vs. State of Maharashtra and Anr. - 2006 ALL MR (Cri) 2456. It was brought to the notice of the learned Single Judge that on the basis of the judgment in Mamatadevi's case, the subordinate Courts are accepting the affidavits of the complainants in lieu of verification statement and are issuing process against accused. The said procedure is inconsistent with the decision in M/s Nova Electricals. Thus there would be confusion in the subordinate Courts as to what procedure should be followed. In order to avoid further confusion regarding legal position, the 5 reference as above was made to the larger Bench.

6. We have heard Mr. Sunil Manohar, Advocate for the accused and Mr. Masood Sharif, Advocate for the complainant at length.

7. Mr. Manohar, the learned counsel for the accused, submitted that Section 190 in Chapter XIV of the Cr. P. C. deals with the cognizance of offences by Magistrates whereas Chapter XV deals with the procedure to be adopted in case of complaints to Magistrates. Section 190 of Cr. P. C. mentions three modes of taking cognizance of offence by Magistrate. Section 200 of Cr. P. C. casts a duty on the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present, if any, to reduce the substance of such examination to writing and to sign such substance. The proviso to