The defect of verification under section 200 of the CrPC can be cured by the complainant by filing his evidence on affidavit during trial.

JUDGMENT

Amit Borkar, J. - This petition under article 227 of the Constitution of India read with section 482 of the Code of Criminal Procedure, 1973 (hereafter 'CrPC', for short) assails the legality, propriety and correctness of order dated 23rd October, 2018 passed by the learned Metropolitan Magistrate, 28th Court, Esplanade, Mumbai issuing process against the petitioners for offence under section 138 of the Negotiable Instruments Act, 1881 (hereafter 'NI Act', for short) and order dated 29th July 2022 passed by the learned Additional Sessions Judge, Greater Mumbai in Criminal Revision Application No.1418 of 2019 confirming order of issuance of process.

2. Considering limited issue involved in these petitions, only those facts which are necessary for adjudication of the said issue are stated.

3. The respondent No.1 is the complainant who has filed a complaint under section 138 of the NI Act. The learned Metropolitan Magistrate 28th Court, Esplanade, Mumbai by order dated 23rd October, 2018 issued process against the petitioners and others. The said order of issuance of process was challenged before the learned Sessions Court. The learned Sessions Court by the impugned order confirmed the order of issuance of process.

4. Being aggrieved, the petitioner has invoked writ jurisdiction of this Court.

5. Mr. Aabad Ponda, learned senior advocate for the petitioners submitted that the verification statement of the complainant under section 200 has been affirmed before the Judicial Clerk, Metropolitan Magistrate, 28th Court, Esplanade, Mumbai. The advocate for the complainant has signed above expression 'before me' at the end of verification statement. The Judicial Clerk has no power to record verification under section 200 of the CrPC. The verification as contemplated under section 200 needs to be done by the Magistrate personally and not by the Judicial Clerk. The complainant had option of filing affidavit as contemplated by section 145 of the NI Act, to skip normal procedure contemplated under section 200 of the CrPC. It is open for complainant to file his verification on the basis of an affidavit under section 145 of the NI Act. The manner of preparation of verification and filing of affidavit has been settled by earlier binding precedents which are as under:

A.C. Narayanan v. State of Maharashtra & Another reported in (2014) 11 SCC 790; Amar Singh v. Union of India and Others reported in (2011) 7 SCC 69; and unreported judgments of this Court in the case of Sayed Anwar Ahmed v. The State of Maharashtra and Another, Criminal Writ Petition No.924 OF 2016 dated 27th and 28th February, 2017; M/s. TRL Krosaki Refractories Ltd. v. M/s SMS Asia Private Limited & Anr, Criminal Appeal No.270 of 2022 dated 22nd February, 2022.

6. Per contra, the learned advocate for the respondents supported the impugned order submitting that the complaint is supported by verification affirmed before Judicial Clerk. On 23rd October 2018, the complainant was examined and verification on solemn affirmation was recorded by the learned Magistrate endorsed by the Judicial Clerk. The learned Magistrate has approved such verification by making remark 'seen'. This Court on administrative side by notification dated 30th July, 2015 bearing Notification No.A(slp)/Misc/332/2015 has empowered all Judicial Clerks to act as Commissioner of Oath to administer oath and affirmed affidavits concerning judicial proceedings in Court of the Chief Judicial Magistrate, Additional Chief Judicial Magistrate and Metropolitan Magistrate Courts in India. The learned Magistrate issued process after being satisfied of prima facie case against petitioners. The learned Sessions Judge has rightly observed that once Judicial Clerk has administered oath to the complainant, it is not necessary that oath needs to be administered by the learned Magistrate again. In support of his submission he relied on the judgments in Dinesh Vaishnav V/s Kishor Kumar Gupta reported in MANU/MP/0005/2015; Rajkumar