An irregularity committed by a Magistrate in good faith in taking cognizance of an offence cannot be set aside under Section 460(e) of the CrPC.

1. - The subject matter of challenge in the instant petitions is the order dated September 9, 1997 of the learned Court of Additional Chief Judicial Magistrate No. 2 Kota whereby its earlier order dated August 27, 1994 taking cognisance of offence under section 138 of the Negotiable Instruments Act (for short the Act) was reviewed and quashed at the fag end of the trial and the accused was directed to pay cash in the sum of Rs.1500/- to the complainant, the impugned order has been called in question by the complainant in revision petition No. 520/97 and by the accused in Misc. Petition No. 189/98.

2. A synopsis of the case is the following-

(i) On May 11, 1994, the complaint instituted by the complainant under section 420 IPC and 138 of the Act was forwarded under Section 156(3) Cr.PC. by the learned Magistrate to Police Station Bhimganj Mandi Kota for investigation. The P.S. Bhimganjmandi investigated the case and submitted report under section 173 Cr.PC. stating therein that no case under section 420 IPC was made out. It was however, stated that offence under section 138 of the Act was prima-facie established. The complainant submitted a protest petition and the learned Magistrate vide its order dated August 27, 1994 took cognisance of the offence under Section 138 of the Act and the accused was ordered to be summoned. The accused appeared and substance of accusation was explained, to which he denied. The complainant examined only himself and closed his evidence. The statement under Section 313 Cr.PC. of the accused was recorded. The accused appeared as a defence witness (DW 1).

(ii) At the time of final arguments, an objection was raised on behalf of the accused that the cognisance could not have been taken under section 138 of the Act in view of provisions contained in section 142 of the Act. Learned Magistrate vide impugned order quashed the order of taking cognisance as well as entire proceedings based on it and imposed costs in the sum of Rs.1500/- on the accused on the ground that he raised the objection after a delay of two years and six months.

3. It will be useful at this juncture to advert to the relevant statutory provisions.Section 190 of Cr.PC. provides thus-

"190. Cognisance of offences by Magistrate-(1) Subject to the provisions of the Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2), may take cognisance of any offence.

(a) upon receiving a complaint of facts which institute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognisance under sub-section (1) of such offences as are within his competence to enquire into or try."
Section 142 of the Act indicates that

"Notwithstanding anything contained in the Code of Criminal Procedure 1973 (2 of 1974)

(a) no court shall take cognisance 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."

4. But section 190 Cr.PC. and section 142 of the Act shall have to be read with section 460 (e) of Cr.PC. which runs as undergo-Irregularities which do not vitiate proceedings-If any Magistrate not empowered by law to do any of the following things, namely -

(a) --

(b) ---

(c) --

(d) --

(e) to take cognisance of an offence under clause (a) or clause (b) of this sub-section (1) of section 190;

(f) ---

(g) --

(h) --

(i) ---

erroneously in good faith does that thing his proceedings shall not be set-aside merely on the ground of his not being so empowered."
(Emphasis supplied)

5. Thus order dated August 27, 1994 whereby cognisance under section 138 of the Act was taken on the basis of protest petition of complaint relying upon the report of investigating officer even if tre