Cognizance under Section 138 of the Negotiable Instruments Act requires a written complaint from the payee, not merely a police report, ensuring adherence to procedural law.

JUDGMENT :

1. Heard the parties.

2. This criminal miscellaneous petition has been filed invoking the jurisdiction of this Court under Section 482 Cr.P.C. with a prayer to quash the entire criminal proceeding including the order dated 25.07.2015 passed by the learned Chief Judicial Magistrate, Deoghar in connection with Deoghar Town P.S. Case No. 317 of 2012, corresponding to G.R. No. 1084 of 2012 whereby and where under, the learned Chief Judicial Magistrate, Deoghar has taken cognizance for the offence punishable under Section 138 of Negotiable Instrument Act and also to quash the order dated 28.08.2018 passed by the learned Sessions Judge, Deoghar in Criminal Revision No. 29 of 2018 whereby and where under, the learned revisional court affirmed the said order dated 05.02.2018 passed by the learned Chief Judicial Magistrate, Deoghar.

3. The brief fact of the case is that the opposite party no.2 filed P.C.R.Case No. 601 of 2012 in the court of learned Chief Judicial Magistrate, Deoghar and the said case was referred to police under Section 156(3) Cr.P.C. for registration of the FIR and police after investigation of the case submitted charge sheet alleging that the petitioner has committed the offence punishable under Section 138 of N.I. Act only.

4. It is submitted by the learned Senior Advocate appearing for the petitioner that in view of the Section 142 (1)(a) of Negotiable Instrument Act, 1881 which reads as under:-

142. Cognizance of offences.—(1) Notwithstanding anything 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. (Emphasis supplied)

The cognizance for the offence punishable under Section 138 of N.I. Act can only be taken upon a complaint in writing made by the payee or, as the case may be, the holder in due course of the cheque but as the same has been taken on the basis of the police report, the cognizance is bad in law.

5. It is next submitted by the learned Senior Advocate appearing for the petitioner that though the petitioner filed a petition under Section 258 of Cr.P.C. for dropping the case against the petitioner but during the pendency of the said petition, the opposite party no.2 filed a petition under Section 259 Cr.P.C. for adding additional charge against the petitioner. It is then submitted that the learned Chief Judicial Magistrate, Deoghar has committed a grave error by passing order on the petition under Section 259 of Cr.P.C. filed by the opposite party no.2 without deciding the petition under Section 258 of Cr.P.C.

6. Learned counsel for the opposite party no.2 submits that the offence punishable under Section 138 of N.I. Act is not made out but offences punishable under Sections 420 , 406, 467, 468, and 471 of INDIAN PENAL CODE is made out against the petitioner.

7. Learned Addl. P.P. fairly submits that cognizance for the offence punishable under Section 138 of N.I. Act cannot be taken on the basis of the police report.

8. Having heard the submissions made at the Bar and after going through the materials in the record, this Court finds that though there is no allegation of dishonour of cheque, the learned Chief Judicial Magistrate, Deoghar has committed grave error by taking the cognizance for the offence punishable under Section 138 of N.I.Act.

9. In view of the aforesaid fact, this Court has no hesitation in holding that the order taking cognizance dated 25.07.2015 passed by the learned Chief Judicial Magistrate, Deoghar as well as the order da