M. Karpagavinayagam, J. - The private complaint filed by M/s. P. Manickam & Co. represented by its Partner M. Nagarajan, taken on file by II Metropolitan Magistrate, Chennai in C.C. No. 7157 of 1996 for the offences under Sections 138 and 142 of the Negotiable Instruments Act, is sought to be quashed by the accused persons (A1 to A3), the petitioners herein.

2. The learned counsel for the petitioners would raise the following points, while seeking for quashing of the above said proceedings :

(1) While taking complaint on file, the trial Court has not followed the mandate contained in Section 200, Cr. P.C. by not writing in the order of taking cognizance whether any witnesses were present to be examined and as such the issue of process under Section 204 Cr. P.C. against the petitioners will have to be held to be a nullity.

(2) The private complaint has been filed even before the cause of action has arisen as contemplated under Section 138 of the Act and as such, the complaint is premature and consequently, the proceedings are illegal.

3. In elaboration of these points, rival contentions have been urged by both the counsel for the petitioners as well as the counsel for the respondent. Both have cited several decisions rendered by this Court, other High Courts and the Supreme Court to sustantiate their respective pleas.

4. Let me consider the first point.

5. According to the counsel for the petitioners, under Section 200. Cr.P.C., it is obligatory on the part of the Magistrate to examine not only the complainant, but also the witnesses who are present in Court and if no witnesses were present, the same should be mentioned in the order itself, otherwise the process is illegal. In support of the above proposition, the learned counsel for the petitioners would cite K. Chandan v. Chellappa Mudaliar, 1996 (1) Crimes 13. and R. Subramanian v. R. Muthukamatchi, 1997 (1) M.W.N. (Cr.) 251.

6. On the other hand, the learned counsel for the respondent would cite M. Kunhayisu v. P. Kallyani, 1987 Cri. L.J. 125, Munusamy Adopted Son of Vaithialingam v. Perumal Dhanalakshmi @ Sonthrabai, 1999 (1) L.W. (Crl.) 54 and U.P. Pollution Control Board v. M/s. Mohan Meakins Ltd. and others, 2000 (2) Supreme 520, in order to show that the recording as "witnesses not present" is not necessary and if the Magistrate on the basis of the sworn statement given by the complainant finds prima facie, he would be certainly empowered to issue process under Section 204, Cr. P.C.

7. Let us now see Section 200 Cr. P.C. Section 200 is as follows:-

"200. Examination of complaint.- 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."

8. Section 204 deals with issue of process. Section 204 provides thus:-

"204. Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be-

(a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself), some other Magistrate having jurisdiction.

(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.

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9. The reading of Sections 200 and 204 of Cr.P.C. would show that they do not prohibit issue of process either in the absence of examination of witnesses or recording the absence of witnesses in the record. On the other hand, Section 204(2) would specifically provide no summons or warrant (process) shall be issued against the accused under sub-section (1) until a list of prosecution witnesses has be