In a complaint case alleging commission of a non-cognizable offence, the Magistrate must take cognizance and examine the complainant and witnesses before ordering investigation.

( 1 ) THIS petition filed under Section 482 of the Cede of Criminal Procedure (for short the Code ) raises a question as to the procedure required to be followed by a Magistrate, on receipt of a complaint, alleging commission of an offence.

( 2 ) A brief narrative of the facts would facilitate having a proper perspective of the issue involved. The petitioner is company incorporated under the Indian Companies Act (for short the Company ). A complaint was filed by the Company s authorised representative under Section 138 cf the Negotiable Instruments Act, 1881 alleging that M/s. Modern Packers, arraigned as accused No. I in the complaint, was a proprietary concern of Ch. Ram Singh, shown as accused No. 2, and that a cheque was issued in the name of accused No. 1 for a sum of Rs-32,666. 50 on 15th June 1989 duly signed by accused No. 2 towards payment of the price of goods but on presentment the said cheque was received back with banker s endorsement refer to drawer . It was alleged that the cheque had been dishonoured owing to the fact that the account of the accused in the bank did not contain sufficient amount to meet the same. A registered notice was issued thereafter informing the accused about the cheque having been dishonoured but failing to get any response, and after issuing another notice, which was duly received by the accused, and no payment having been received within tile stipulated period of 15 days, since after the expiry of the receipt of the notice, an offence as contemplated by Section 138 of the Act was alleged to have been made out.

( 3 ) THE complaint filed on 25th July, 1989 was received by the concend Magistrate on the same day whereupon he passed the following order :

( 4 ) AGGRIEVED by the order, the petitioner has come to this Court, seeking abashment thereof on the plea that the procedure resorted to by the Magistrate is wholly unwarranted, and in contravention of the provisions of the law. The matter has been heard at length, after notice to the State.

( 5 ) MR. Batra appearing for the petitioner, has argued that the offence under Section 138 of the Act is a non-cognizable offence by virtue of provisions of Section 142 of the Act which provides, inter alia, that :

"142,. Cognizance of offencs.-Notwithstanding any- thing contained in the Code of Criminal Procedure, 1973 (2 of 1974),-

(A) no court shall take cognizance of any offence punishable under Section 138 except upon a complaint, in writing made by the payee or, as the case may be, the holder in due course of the cheque ;

(B ). . . . . . . . . . . . . . . . . . . . . . . . . . .

( 6 ) THE contention is that by virtue of the non-obstante clause as comprised in Section 142 of the Act, the Magistrate receiving the complaint has to proceed straightway to take cognizance of the offence on a complaint being made to him in writing, and that he cannot send the same for investigation to the police, and that the learned Magistrate has grossly erred in forwarding the complain! to the police at the pre-cognizance stage.

( 7 ) MR. Batra conceded, in response to a Court querry that in a case where the offence alleged is cognizable, the Magistrate may in appropriate cases exercise power under Section 156 (3) of the Code, and order investigation to be made by an officer in charge of a police station. He submitted however that in no event such a power, as contemplated by Section 156 (3) coald be exercised on a complaint being received in its court, involving a non-cognizable offence.

( 8 ) ACCORDING to the learned counsel, in such cases the Magistrate has to take cognizance, as contemplated by Section 190 (1) (a) of the Code and thereafter follow the procedure as laid down by Chapter XV of the Code, which makes it incumbent upon a Magistrate to examine upon upon the complaint and the witnesses present with him, if any.

( 9 ) ON attention being drawn to the provisions of section 202 of the Code wherein a Magistrate has been given power in cases wh