The central legal point established in the judgment is the applicability of criminal proceedings in a dispute of a civil nature, as well as the interpretation of Section 200 of the Code of Criminal Procedure.

Akhilesh Chandra, J.

1. Heard learned Counsel for the petitioners, Additional Public Prosecutor for the State and Mr. Jitendra Kumar Roy, learned Counsel for the opposite party No.2. Since both these applications arising out of same case pending before the court below and only in the event of the earlier application decided in favour of the opposite party, any adjudication and finding on the point in issue arising in criminal revision shall be required. So, with the consent of the parties both the application are heard together and being disposed of by this Court as composite order.

2. Relevant facts of the applications is that opposite party No. 2, an holder of insurance policy issued from Life Insurance Corporation, Gaya Branch, (hereinafter referred as Corporation), obtained loan of Rs. 70,000/- from the corporation for the purpose of construction of house on execution of agreement entered into against his policy in response of sanction of Rs. 75,000/- for the purpose on his application for loan dated 26/05/1991.

3. A sum of Rs. 1,04,489.00/- was paid by complainant-opposite party No. 2 towards principal and interest etc. and as per corporation some more amount was lying due, so legal notice was issued on 10/01/2004 against complainant-opposite party No. 2 making such demands, stating details of the dues against the complainant.

4. The opposite party No. 2 lodged the complaint before the court below, stating that in the notice instead of loan amount of Rs. 70,000/-, it has been mentioned as Rs. 70,000/- & 75,000/- respectively totaling to Rs. 1,45,000/- and the payments made by the complainant has not been adjusted towards principal amount of loan taken by him. In fact, according to the complainant, there remains nothing to be paid under the head of principal. It is also stated in Paragraph - 4 of the complaint petition that loan was advanced at interest of 14% or at the rate prevailing in commercial banks from time to time, thus, as submitted the rate of interest is floating one, but the calculation done is not proper. Further, it is stated that reply to the notice has also been send to the corporation, but in spite of waiting for a substantial long period nothing could be done, compelling the complainant to file the complaint apprehending that the money paid by him is to be misappropriated.

5. On filing of the complaint by impugned order dated 18/7/2005 cognizance was taken by Judicial Magistrate, Gaya as for offence under Section 406 of the Indian Penal Code and case was transferred for trial and disposal to the court of Shri Om Sagar, Judicial Magistrate, 1st Class, Gaya.

6. While assailing the impugned order, taking cognizance it is submitted by learned Counsel for the petitioners that in violation of provision contemplated under Section 200 of the Code of Criminal Procedure, complainant was not examined on solemn affirmation and on this ground alone impugned order is not sustainable. In support of the contention reliance has been placed on the Division Bench decision of this Court in a case of Sudama Singh v. Kavindra Narain Singh reported in 1973 (1) BBCJ IV19, where in after referring relevant provisions of Code of Criminal Procedure and decision of other courts, it has been held in Paragraph - 7 "The issuing of the process therefore without the examination of the complainant on oath was in violation of law prescribed in Section 200 of the Code. The violation may not vitiate the trial, but it cannot be allowed to remain when it comes to the notice of this Court at the appropriate time as in this case." The learned Counsel for opposite party No. 2 initially tried to laid emphasis that the case comes in the Proviso - a of the Section 200 of the Code of Criminal Procedure, but subsequently concedes that the error occurred in the order, is curable and on that ground the trial cannot be vitiated. Learned Additional Public Prosecutor also is of same view.

7. Since it is now undisputed, taking into consideration p