IMPORTANT POINT
Section 145 of Negotiable Instruments Act provided for evidence of complainant could be given by him on affidavit and summoning of accused on basis of such evidence would not be vitiated.

S.B. Majage, J — In view of similarity in the facts and as same point is involved between the same parties, these two petitions are taken together for consideration.

2. The respondent-complainant filed a complaint before the learned Magistrate against the petitioner-accused for an offence punishable under Section 138 of Negotiable Instrument Act. The learned Magistrate did not examine the complainant on oath, but received the affidavit of the complainant as sworn statement, when filed by the complainant and, considering the material on record and finding that a prima facie case has been made out by the complainant to issue process against the accused for the offence alleged, Ordered to issue process against the accused. So, challenging the same, the petitioner-accused is before this Court.

3. When the respondent-complainant appeared before the Court after notice, with consent of both sides, taken the matter for final hearing and heard both sides.

4. It was vehemently argued for the petitioner-accused that in view of Section 200 of Cr.P.C., which is mandatory in nature, the learned Magistrate could not have received the affidavit of the respondent-complainant instead of examining the complainant on oath and hence, the proceedings require to be quashed.

On the other hand, the learned Counsel for the respondent-complainant submitted that in view of Section 145 of the Negotiable Instrument Act, there is no bar to receive affidavit evidence now instead of examining the complainant on oath under Section 200 of Cr.P.C. and, at any rate, the procedure adopted by the learned Magistrate has not prejudiced the petitioner-accused in any way and consequently, the proceedings cannot be quashed. Perused the record carefully.

5. The only point for consideration is:

“Whether proceedings get vitiated when received affidavit instead of examining the complainant on oath by the learned Magistrate?”

6. According to Section 200 of Cr.P.C., a Magistrate taking cognizance of an offence on the complaint shall examine upon oath the complainant and the witnesses, if any. The object of such examination of the complainant on oath is, to test whether the allegations in the complaint make out a prima facie case and there is sufficient ground or material or evidence in support of the complaint to enable the Magistrate to issue process. In other words, such examination of the complainant on oath by Magistrate is necessary to ascertain prima facie in truth or falsehood of the complaint and to satisfy himself as to the veracity of the complainant and as to any points on which the complainant is silent or on which there may be doubt. Such a procedure to examine the complainant on oath was found necessary to provide an inbuilt mechanism against Court being misled and would also ensure a due scrutiny of the complaint prior to issuing of process.

7. In this connection, it would be useful to note following observations made by a Division Bench of this Court in the case of Naganagouda J Veeranagouda Patil and Another v. Malatesh H. Kulkarni and Others1.

“7.Historically; it is necessary to point out that under the old Code of Criminal Procedure, the formal verification process was non-existent and the complaint was presented to the learned Magistrate and effectively, it was on the basis of the submissions made in the Court room for which there was no record, that the process was issued. The Law Commission in its recommendations had pointed out that in a large number of cases though the complaint confined itself to the facts and the submissions, that statements used to be made in the Court room which went far beyond whatever was stated in the complaint only for purposes of snatching the Order of process and, at a later point of time it was realised that the Court had been misled. The recommendation to Parliament was therefore that some inbuilt mechanism be provided for which would ensure a due scrutiny prior to the issue of process and that this procedure should ta