1. This petition under section 482 of CrPC has been filed by the petitioner for quashing the order dated 6.11.2007 passed by the Special Judicial Magistrate Gwalior in Criminal Case No. 13141/2007 (complaint) whereby on basis of complaint filed by the respondent herein, cognizance has been taken against the petitioner herein under section 138 of Negotiable Instruments Act (for short “the Act”) and directed to issue summon for his appearance before it.

2. The relevant facts for adjudication of the matter are that the respondent herein/complainant filed a complaint before the trial Court through its Director, Ashish Mittal and the power of attorney holder, Mukesh Kumar Mittal against the petitioner herein/accused for an offence punishable under section 138 of the Act alleging that the petitioner herein/accused has taken loan of Rs. 3,00,000/- on 23.6.2003 from the complainant. The petitioner has issued four cheques dated 13.8.2007 bearing Nos. 364961, 364962, 364963 and 364964 of Rs. 50,000/- each in favour of the complainant towards discharge of his liability. When the aforesaid cheques were presented by the complainant in the Bank for payment, the same were dishonoured and as amount was not paid by the petitioner in spite of notice of demand, therefore, the complainant filed a complaint under section 138 of the Act on 8.10.2007. The learned special Magistrate took cognizance of the offence by the impugned order which reads as under”

**------------------ ifjoknh }kjk izLrqr ifjokn i=] leFkZu esa ‘kiFk i= ,oa nLrkostksa ds voyksdu ls vkjksih ds }kjk ijØkE; fy[kr vf/kfu;e] 1881 dh /kkjk 138 ds izko/kku ds varxZr n.Muh; vijk/k dkfjr djus gsrq i;kZIr vk/kkj gksus ls vijk/k dk laKku fy;k tkrk gSA ----------------**

Being aggrieved thereof, this petition under section 482 of CrPC preferred by the petitioner herein/accused.

3. Shri R S Bansal, learned counsel appearing on behalf of the petitioner submits that since no statement of the respondent/complainant was recorded under section 200 or 202 of CrPC, therefore, taking cognizance and summoning the accused is bad in law, thus, the impugned order passed by the trial Court is illegal and deserves to be set aside. Learned counsel has placed reliance on the following decisions:

(1) Maharaja Developers and another v. Udaysingh Pratapsinghrao Bhonsle and another, 2007 CriLJ 2007 (Bombay);

(2) National Small Industries Corporation Ltd. V. State (NCT of Delhi) and others, 2009 (2) MPHT 1 (SC) and

(3) National Highways Authority of India and others v. Ramesh Kumar Suryawanshi and another, 2012 (2) MPHT 12 (CG).

4. In response, Shri Rajmani Bansal, learned counsel appearing on behalf of respondent herein/complainant submitted that in view of the sections 142 and 145 of the Act, taking cognizance on the basis of the complaint supported by an affidavit, the learned trial Court has not committed any illegality, therefore, prayed for dismissal of the petition. In support of his contention, he placed reliance on the following decisions:

(1) Mandvi Cooperative Bank Limtied v. Nimesh B Thakore, (2010) 3 SCC 83;

(2) M/s. Amita Gas Service and another v. Raman Gupta, 2010 (III) MPWN 106=2011 (1) MPHT 191 and

(3) Sachin Agarwal v. State of Uttar Pradesh and others, 2012 CriLJ 577 (Allahabad).

5. I have considered the rival contentions of the learned counsel for the parties and perused the record.

6. Admittedly, the learned trial Court has taken cognizance against the petitioner under section 138 of theAct on the basis of complaint and affidavit of complainant, Ashish Mittal as well as other documents produced by the complainant in support of the averments made in the complaint.

7. The core question for consideration is that whether the learned trial Court erred in law by taking cognizance against the petitioner uner section 138 of the Act on the basis of affidavit sworn by complainant without recording his statement and statement of his witnesses under sections 200 and 202 of CrPC?

8. Section 200 of C