1. This order shall govern the disposal of the M. Cr. C. No. 427/1 0 and 433/10.

2. Invoking the extraordinary powers of this Court under section 482 CrPC petitioners have preferred this petition for setting aside the orders dated 7.9.2007 and 8.1.2008 passed by the Special Judge, Gwalior in Criminal Case No.10751/07 and 167/08 whereby on complaint filed by respondents cognizance has been taken against present petitioners under section 138 of Negotiable Instrument Act. .

3. As per the averments of the petition, the petitioner No.1 M/s. Anita Gas Service is proprietorship firm and the petitioner No.2 is also Proprietor of the aforesaid firm. The petitioner No.2 engaged one Raman Gupta (respondent in M. Cr. C. No. 427/10) to work at Gas Service of petitioner No.1 on 30.10.1998. Raman Gupta was authorised to deal with bank transaction on behalf of the petitioner No.2 vide annexure-P/4. Raman Gupta worked against the interest of the petitioners as he committed various financial irregularities, so he was removed from service on 30.4.2007. While working with the petitioners Raman Gupta obtained one cheque-book on 2.12.1998 containing 25 cheques that cheque-book was with him and Rajesh Modi (respondent in M. Cr. C. No. 433/10) is close friend of Raman Gupta and when Raman Gupta was removed from service then respondents Raman Gupta and Rajesh Modi handing in gloves with each other prepared a false story of advancing loan of Rs. 3 lac to the petitioners in cash. On 1.7.07 cheque No. 949189 dated 6.7.07 worth Rs. 3 lac is said to have been issued by the petitioner No.2 and another blank cheque No. 445351 is prepared by respondent Raman Gupta in his favour. When petitioner No.2 came to know about the fact that cheque-book issued on 2.12.1998 containing 25 cheques is missing from the office then the petitioner No.2 vide annexure-P/6 lodged a complaint in United Corporated Bank Lashkar that cheque-book issued on 2.12.1998 is missing and prayed that cheques related to that cheque-book are not to be accepted for payment and also lodged a report at Police Station Janakganj vide annexure-P/7. Raman Gupta and Rajesh Modi then filed criminal case in the Court of CJM Gwalior under section 138 and 142 of Negotiable Instrument Act, 1981 as the cheques presented in Bank for encashment are returned by Bank with an endorsement of stop payment". The aforesaid cases were transferred to Special Judicial Magistrate, who took cognizance vide impugned orders and issued summons to the petitioners, giving rise to this petition.

4. It is contended by the learned counsel for the petitioners that orders of learned trial Court of taking cognizance is improper, illegal and learned trial Court has erred in taking cognizance against the petitioners as statement of complainant and his witnesses have not been recorded under section 200 and 202 CrPC and only on the basis of affidavit sworn by complainant cognizance has been taken while it is mandatory to record statement of complainant as well as witnesses before taking cognizance. Hence the impugned orders are to be quashed. Learned counsel for the petitioners drew this Court's attention to a citation National Small Industries Corporation Limited v. State (NCT of Delhi) and others (2009) 1 SCC 407 wherein it is held that examination of complainant under section 200 CrPC is mandatory. Apex Court quoted the following observations made in Associate Cement Co. Ltd. v. Keshavanand (1998) 1 SCC 687 with approval.

"22. Chapter XV of the new Code contains provisions for lodging complaint with Magistrate. Section 200 as the starting provision of that Chapter enjoins of the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words 'shall examine on path the complainant...........'. The Magistrate is further required to reduce the substance of such examination to writing and it 'shall be signed by the complainant'. Under