Examination of the complainant on oath is mandatory, even in cases of complaint alleging commission of offence under Section 138 of the Negotiable Instruments Act.

Manindra Mohan Shrivastava, J. - This pennon under Section 482 of the Code of Criminal Procedure. 1973 (hereinafter referred to as ' Criminal Procedure Code ' has been filed by the petitioner aggrieved by order dated 4,14/09 passed by the Judicial Magistrate. 1st Class, Raipur in case No. 1386/09 by which, cognizance of the offence under Negotiable Instruments Act, 1881 (for short the Act of 1881') has been taken against the petitioners.

2. The respondents filed a complaint in the Court of Judicial Magistrate, 1st Class, Raipur alleging commission of offence under Section 138 of the Act of 1881 against the petitioners. In the complaint, it has been averred that the petitioners had issued cheques towards discharge of his liability in the matter of payment of arrears of rent of the premises owned by the respondents, but when the cheques were presented, the same were returned as dishonoured with the endorsement of "stop payment". It is further averred that a demand notice was given but as the payment was not made within the time stipulated, complaint has been filed. After taking into consideration the contents of the complaint, the learned Magistrate took cognizance of the offence and issued process, against which, instant petition has been filed by the petitioners.

3. Though several grounds have been raised to assail the order passed by the learned Magistrate, during the course of submission, learned counsel for the petitioners confines submission to the sole issue with regard to non-examination of the complainant on oath before taking cognizance and issuing process. The submission of learned counsel for the petitioners is that the complainants were neither examined nor their submissions were recorded prior to taking cognizance of the offence and issuance of notice to the petitioners. In support of his submission, learned counsel for the petitioners relied upon the order dated 19.10.2011 passed in Cr. M.P. No. 128/10 (Raj Kumar Singhania v. Ashok Jain) and connected matters and submits that non-examination of complainant on oath render proceedings illegal and also vitiates the order and proceedings taking cognizance. He submits that in the case of National Small Industries Corporation Limited u. State (NCT of Delhi) and Ors. also, the Supreme Court has reiterated the view taken by it in earlier cases, referred to in the case i.e. Cr.M.P. No. 128/10.

4. On the other hand, teamed counsel for the respondents submits that in the case of Amarjit Sinah v. Jasjit Sinah, 2011 (2) CGLR 49., it has been held that the provisions with regard to examination of complainant on oath have been held to be directory and not mandatory. He submits that the aforesaid decision has been rendered, relying upon the decision in the case of Damodar S. Prabhu v. Sayed Babalal H., 2010 Cri. L.J. 2860 Learned counsel for the respondents submitted that the provisions contained in the Negotiable Instruments Act provide special procedure with regard to taking cognizance and conduct of trial in the matter of commission of offence under Section 138 of the Act of 1881. He further submits that the provisions contained in Sections 142 to 146 of the Negotiable Instruments Act have overriding effect and will therefore prevail over the provisions contained in the Criminal Procedure Code, which is a general law.

5. The effect of non-examination of the complainant on oath before taking cognizance in a case of commission of offence under Section 138 of the Act of 1881 was considered by this Court in the case of Raj Kumar Singhania (Supra) and connected matters. After taking into consideration the statutory scheme engrafted in Section 200 of the Criminal Procedure Code and considering the effect and impact of special provisions contained in Sections 142 to 145 of the Negotiable Instruments Act and its interface, this Court, relying upon the judgment of the Supreme Court in the case of Nirmaijit Singh Hoon v State of W.B., 1973 (3) SCC 753, Adalat Prasad v. Rooplal Jin