1. Heard Mr. R. Pai, learned Counsel for the petitioner and Mr. Sudesh Usgaonkar, learned Counsel for the respondent. Rule. By consent returnable forthwith.

2. By this petition, the petitioner challenges the criminal proceedings initiated against him by the respondent before the Chief Judicial Magistrate, Panaji in Criminal Case No.868/0AINI/2005/ A.

3. Briefly the facts relevant for disposal of the present petition, are as under:

The respondent filed above complaint under section 138 of Negotiable Instruments Act ('The Act' for short) for dishonour of cheque dated 29-03-2005 for Rs.26,13,500/-issued by the petitioner. The respondent filed affidavit in support of the complaint on the basis of which the learned Chief Judicial Magistrate issued process against the petitioner under section 138 of the Act. After the process was issued, the plea of the petitioner was recorded, to which the petitioner pleaded not guilty. Thereafter, the matter was adjourned from time to time inter alia for exploring possibility of settlement.

4. Learned Counsel for the petitioner submitted that the proceedings initiated against him, are not maintainable primarily on the ground that the learned Magistrate has erred in issuing process against him without examining the complainant on oath. According to the learned Counsel, before issuing process, examination of the complainant is mandatory and the evidence by way of affidavit cannot be substitute for examination of the complainant. In support of this submission, learned Counsel has placed reliance upon Division Bench Judgment of this Court in Maharaja Developers and Another Vs. Udaysing Pratapsingh Bhonsle reported in 2007 ALL MR (Cri) 1339. The learned Counsel further submitted that in view of the judgment in Maharaja Developer's case, 2007 ALL MR (Cri) 1339 (supra), the entire proceedings initiated against the petitioner, are liable to be set aside and the matter remanded to the Magistrate and further that the petitioner is entitled to intervene in the matter under section 145 of the Act. He, therefore, submitted that the proceedings initiated against the petitioner under section 138 of the Act by filing Criminal Case No.868/0AINI/2005/A, be quashed and set aside.

5. Per contra, Mr. Usgaonkar, learned Counsel for the respondent fairly conceded that in view of judgment in Maharaja Developer's case [2007 ALL MR (Cri) 1339] (supra), the respondent/complainant ought to have been examined before issuance of process. However, he submitted that the matter has to be remanded to the Magistrate to proceed under Chapter XV of Criminal Procedure Code and at this stage, the accused has no right to be heard. According to learned Counsel, it is for the Magistrate to decide what course he chooses to adopt in the case in terms of Chapter XV of the Code.

6. I have considered the submissions made by learned Counsel for the parties and perused the record and the judgment relied upon on behalf of the petitioner.

7. It is not in dispute that the respondent was not examined under Section 200 of the Code and the Magistrate relying upon affidavit filed by the respondent issued process against the petitioner. This exercise undertaken by the Magistrate cannot be sustained in view of the ratio laid down by the Division Bench of this Court in Maharaja Developer's case [2007 ALL MR (Cri) 1339] (supra). Moreover, Mr. Usgaonkar has also fairly conceded this legal position. Therefore, the order issuing process against the petitioner as well as plea of the accused recorded by the Magistrate are liable to quashed and set aside.

8. The next question which arises for consideration is, whether the petitioner is entitled to intervene before the Magistrate after the case is remanded to the Magistrate under Chapter XV of the Code. The Magistrate, taking cognizance, can examine the complainant and the witnesses under Section 200 of the Code. The Magistrate can resort to Section 202 of the Criminal Procedure Code, if the predicates mention