B.D. Agarwal, J.

1. This criminal revision petition is arising out of a proceeding under Negotiable Instruments Act, 1881. The Respondent herein filed a complaint in the court of learned Chief Judicial Magistrate, Kamrup at Guwahati on 16.12.09 for trial of the accused under Section 138 of the N.I. Act. The complaint was registered as C.R. Case No. 4607 of 2009 and in due course the case was transferred to the court of SDJM II, Kamrup, Guwahati. The complaint petition was accompanied with evidence in the form of an affidavit and relevant documents. On the basis of the averments made in the complaint petition and affidavit evidence, cognizance was taken and process against the accused was issued vide order dated 16.12.2009.

2. After appearance in the court, the accused prayed for review of the order dated 16.12.09 on the ground that the affidavit of the complainant cannot be considered as initial deposition as contemplated under Section 200 of the Code of Criminal Procedure. The objection of the accused was over ruled vide order dated 13.12.10. Hence, the accused has preferred this revision petition challenging both the orders dated 16.12.09 and 13.12.10.

3. Heard Mr. BN Sarma, learned Counsel for the Petitioner and Mr. SK Ghosh, learned Counsel appearing for the sole Respondent.

4. Mr. Sarma has submitted that the examination of the complainant is mandatory under Section200 Code of Criminal Procedure and an affidavit evidence of the complainant cannot be considered as sufficient for compliance of Section 200 Code of Criminal Procedure In support of his submission, learned Counsel has relied upon the judgments of this Court rendered in the case of Abdul Kadir Choudhury vs. State of Assam and another (1989)2 GLR 53; L. Luisei, DF. O/C Phek vs. Vehkozo Chizo and another (1987)1 GLR 326; Sandip Roy Choudhury vs. Nupur Saha 2005(2) GLT 226 and the judgment of Hon'ble Supreme Court rendered in the case of Damodar S. Prabhu vs. Sayed Babalal H. (2010)5 SCC 663.

5. On the other hand, Mr. Ghose, learned Counsel for the Respondent submitted that Section 145, inter-alia, was introduced in the N.I. Act vide Act 55 of 2002 which empowers a court to accept evidence in the form of affidavit. Learned Counsel also relied upon the judgment of this Court rendered in Ranvijay Kumar Gupta, alias Pappu v. Anand Kishore Madhesia reported in 2010(1) GLT 533 to buttress his argument that the affidavit evidence in a proceeding under N.I. Act is admissible. In this case this Court had also tacitly accepted the affidavit evidence filed by the complainant at the initial stage. It is true that in the said judgment the issue, as to whether complainant's evidence by way of affidavit can be accepted or not within the meaning of Section 200 Code of Criminal Procedure, was not decided. However, the court did not find any infirmity in accepting the said evidence even at the time of taking cognizance of the offence. In this regard, Mr. Sarma, learned Counsel for the Petitioner submitted that the affidavit evidence can be accepted only during trial and not at the stage of taking cognizance. In other words, the learned Counsel for the Petitioner re-iterated that the personal examination of the complainant is sine-qua-non for taking cognizance of the complaint.

6. Mr. Ghose, learned Counsel for the Respondent also raised a preliminary objection about the maintainability of the revision petition on the ground that the order dated 13.12.10 is a preliminary order and as such no revision petition is maintainable under Section 397(2) Code of Criminal Procedure

7. Apparently, order dated 16.12.09 is the primary order, taking cognizance of the complaint and 13.12.10 is the order rejecting the objection of the accused on the legality in taking cognizance of the complaint. As noted earlier, the Petitioner has challenged both the orders. Besides this, the order dated 13.12.10 cannot be said to an interlocutory order inasmuch as the learned SDJM(S) has taken a final decision