The central legal point established in the judgment is the requirement for the Magistrate to examine the complainant and witnesses upon oath before taking cognizance of an offence under section 138 of the Negotiable Instruments Act.

M.Y. Eqbal. J.

1. Heard the parties.

2. By this application u/s 482, Code of Criminal Procedure the Petitioner has prayed for quashing the entire criminal proceeding including the order of cognizance dated 14.2.2006 passed by Judicial Magistrate. Dhanbad in C.P. Case No. 1944/05 whereby he has taken cognizance u/s 138 of Negotiable Instruments Act.

3. It appears that complainant/O.P. No. 2 filed complaint case in the Court of C.J.M., Dhanbad alleging inter alia that Petitioner took a sum of Rs. 1,50,000/-from O.P. No. 2 against which he issued a cheque of Rs. 33,000/- which was encashed but subsequently another cheque amounting to Rs. 1.17.000/- was dishonoured due to insufficient fund for which a legal notice was issued before filing of complaint case. On the basis of the allegation made in the complaint case, the Court below took cognizance for the offence u/s 18 of Negotiable Instruments Act. The order taking cognizance dated 14.2.2006. reads as under:

Complainant is in attendance. Today the case is fixed for order--

ORDER

Perused the complaint petition, affidavit of complainant and documents. On perusal of above it transpires that sufficient material is available for proceeding the case against the accused name noted in the complaint petition u/s 138, N.I. Act. Hence, complainant is directed to file requisite within a week and put up on 29.3.2006 for appearance.

4. Learned Counsel for the Petitioner assailed the order taking cognizance mainly on the ground that before taking cognizance, neither the complainant nor the witnesses were examined on oath by the Magistrate before passing the said order. It find force in the submission of the learned Counsel.

5. In the instant case, admittedly, before taking cognizance, the Magistrate has not examined the complainant and witnesses, if any. Section 200, Code of Criminal Procedure reads as under:

Examination of complainant--A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate:

Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses--

(a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or

(b) if the Magistrate makes over the case for inquiry or trial to another Magistrate u/s 192:

Provided further that if the Magistrate makes over the case to another Magistrate u/s 192 after examining the complainant and the witnesses, the latter Magistrate not re examine them.

6. From bare perusal of the aforesaid provision, it is clear that Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses. However, proviso to the said section provides that in case where complaint is made by a public servant acting or purporting to act in the discharge of his official duties or in case where Magistrate makes over the case for inquiry or trial to another Magistrate then examination of the complainant or witnesses are not necessary. The provisions of Section 200, Code of Criminal Procedure has been elaborately discussed by the Supreme Court in the case of National Small Industries Corporation Ltd. Vs. State (NCT of Delhi) and Others, , (2009) 1 SCC 407, Their Lordships held as under:

The term 'complainant' is not defined under the Code. Section 142 of the NI Act requires a complaint u/s 138 of that Act to be made by the payee (or by the holder in due course). It is thus evident that in a complaint relating to dishonour of a cheque (which has not been endorsed by the payee in favour of anyone), it is the payee alone who can be the complainant. The NI Act only provides that dishonour of a cheque would be an offence and the manner of taking cognizance of offences punishable u/s 138 of that Act. Howeve