IMPORTANT POINT
Prosecution for offence of dishonour of cheque can be instituted by partners of unregistered firm when cheque drawn in favour of such firm had bounced.

S.P. Talukdar, J. —The present application under Section 482 of the Criminal Procedure Code is directed against the judgment and order dated 2nd May, 2008 passed by learned Chief Judge, City Sessions Court, Kolkata in Criminal Revision No.147 of 2007.

2. The said revisional application before the learned Sessions Court was filed by the present petitioner being aggrieved by the judgment and order dated 25th May, 2007 passed by the learned Additional Chief Metropolitan Magistrate, Kolkata in Case No. C998/05. By the said order, learned Trial Court found the petitioner guilty of the offence under Section 138 of the Negotiable Instruments Act and sentenced him to suffer simple imprisonment for three months and to pay a sum of Rs.1,40,000 to the complainant, as compensation.

3. Grievances of the petitioner, as ventilated in the present application, may briefly be stated as follows:

The petitioner claimed that learned Trial Court was not justified in taking cognizance after consideration of the materials and by doing so, the learned Court put the cart before the horse.

The petitioner had alleged that having regard to Section 69(3) of the Partnership Act, there was no scope for the learned Court to proceed with the said case arising out of the application under Section 138 of the N.I. Act.

The petitioner further alleged that learned Court was not justified in proceeding with the case merely on the basis of the evidence in chief as placed on affidavit.

It was claimed that there could be no scope for awarding compensation without giving the present petitioner an opportunity of hearing.

4. In response to this, learned counsel for the private opposite party submitted that there had been cross-examination as against the affidavit evidence and the plea, as raised before this Court in this regard, was never agitated earlier either before the learned Trial Court or before the learned Court of Chief Judge, City Sessions Court.

Inviting attention of the Court to Section 297 of the Cr.P.C, it was submitted on behalf of the OP No.2 that there could be nothing wrong on the part of the learned Court to rely upon the affidavit evidence. It is abundantly clear that affidavits to be used before any Court under the Code of Criminal Procedure may very well be sworn or affirmed before any notary appointed under the Notaries Act, 1952 (53 of 1952), apart from doing the same before any Judge or any Judicial or Executive Magistrate or any Commissioner of Oaths appointed by a High Court or Court of Session.

5. Learned Counsel for the said OP/State, while echoing the submission made on behalf of the private opposite party, submitted that taking of cognizance is a mere irregularity which cannot vitiate the proceeding. She further mentioned that the fine, as inflicted, could very well flow from the statute itself.

6. The order dated 2nd February, 2006 passed by the learned Additional Chief Metropolitan Magistrate, Kolkata, indicates that an affidavit in deposition shown by the complainant and a petition of complaint under Section 138 of the N.I. Act along with Xerox copies of documents were placed before the learned Court. Learned Court applied its mind to the same. Learned Court found that a prima facie case under Section 138 of the N.I. Act could be made out. Learned Court directed issuance of summons.

7. It is true that the learned Magistrate in the said order wrote ‘cognizance is taken’ subsequent to is satisfaction about the existence of a prima facie case.

The word ‘cognizance’ has not been defined in the Code but it certainly means the application of judicial mind for the purpose of proceeding further. This prompted the learned Magistrate to refer to an earlier decision of the learned Single Bench of this Court in the case between Kishori Mohan Guchhait v. Sri Apurha Baran Mondal.1 Paragraph 13 of the said decision would make it amply clear that this was in the context of Section 197 of the Cr.P.C.

8. I am afraid, the manner in which at