Is the proceedings under Section 200 Criminal Procedure Code “inquiry” an defined under Section 2(g) Criminal Procedure Code? Is the sworn statement recorded before the Magistrate under Section 200 Criminal Procedure Code, ‘evidence’? Can the affidavit filed under Section 145 of the N.I. Act be received by a court to proceed further without insisting on the personal appearance of the complainant? These questions of contextual relevance are thrown up for consideration in this revision petition.

2. The complainant, in a complaint under Section 138 of the N.I. Act, has preferred this revision petition against the order passed by the learned Magistrate “closing” the complaint. I extract below the impugned order:

“Complainant absent. It appears that complainant is not interested to proceed with this case. The Criminal. M.P. is closed”.

3. The learned counsel for the petitioner first of all contends that a Criminal complaint cannot be disposed of with an order like the one extracted above. The Code of Criminal Procedure Speaks of termination of a complaint at the stage of 203 Criminal Procedure Code by dismissal. It does not permit closure of complaint, submits the counsel. I do agree with the learned counsel for the petitioner. The order that the complaint is closed at that stage cannot be said to be one having legal sanction. The impugned order, for that reason itself, warrants interference.

4. The learned counsel for the petitioner has taken me through the facts of the case. The complainant had filed the complaint under Section 138 of the N.I. Act. He had also filed an affidavit under Section 145 of the N.I. Act. The counsel contends that though the affidavit under Section 145 of the N.I. Act was filed, the learned Additional Chief Judicial Magistrate was not prepared to accept and act on the said affidavit. The learned Magistrate unnecessary insisted on the personal appearance of the petitioner/complainant before the learned Magistrate to record his sworn statement under Section 200 Criminal Procedure Code. That is the real reason that promoted the learned Magistrate to pass the impugned order, it is submitted.

5. That takes us to the interesting question as to whether the criminal court should accept and would be justified in accepting, an affidavit filed under Section 145 of the N.I. Act in the proceedings before it at the stage of Section 200 Criminal Procedure Code.

6. Section 200 Criminal Procedure Code mandates that if a private complaint is filed, the Magistrate must proceed to examine the complainant and his witness, if any, present. The law appears to have zealously insisted on such personal appearance of the complainant at the stage of taking cognizance. Exceptions are carved out and it is stipulated that such examination need not be done if the complaint is filed by a public servant acting or purporting to act in the discharge of his official duties. Such examination is not also necessary where a court has made the complaint. Proviso (b) to Section 200 further stipulates that such examination of the complainant and recording of sworn statement need not be done if the Magistrate makes over the case for enquiry or trial under Section 192 Criminal Procedure Code to another Magistrate. In all other cases, such examination has to be made. The Code does not provide for any other exception.

7. A Division Bench of this court had occasion to consider whether in a complaint under Section 138 of the N.I. Act, such examination ought to be undertaken or not. In the decision reported in Harihara Iyer v. State of Kerala (2000(1) KLT 100), it was made clear that in a complaint under Section 138 of the N.I. Act, such examination of the complainant is mandatory and cannot be dispensed with.

8. The learned counsel for the petitioner contends that the N.I. Act has been amended and the provision in Section 145 of the N.I. Act has been incorporated in the Act subsequent to the said decision evidently to permit cognizance being taken wi