The non-examination of the complainant under section 200 of Cr.P.C. does not vitiate the trial proceedings and does not affect the substantial rights and defense of the accused.

JUDGMENT : 

The applicant has filed this petition under section 482 of Cr.P.C. for quashment of criminal proceedings before the Special Magistrate, Gwalior in case No. 3545/07, whereby cognizance under section 138 of the Negotiable Instrument Act (For short hereinafter referred as "NI Act") has been taken by the trial court on a complaint filed by the respondent/complainant.

2. Briefly stated facts of the case are that the respondent/complainant has filed criminal complaint under section 138 of the NI Act against the present applicant. On this written complaint, the learned trial court has taken cognizance against the applicant/accused and proceeded with the trial in the presence of the applicant. The applicant has also cross-examined the complainant and presently the case is fixed for final argument. At this stage, the applicant came up before this Court by this petition under Section 482 of Cr.P.C. stating that the learned trial court without recording the statement of the complainant under section 200 of Cr.P.C. has directly taken cognizance against the applicant for an offence under section 138 of NI Act and without recording statement of the complainant under Section 200 Cr.P.C., taking of cognizance by the trial court is erroneous and illegal. Therefore, he prayed for quashment of the entire proceedings pending before the trial court.

3. Learned counsel appearing on behalf of the complainant submitted that taking of cognizance on the basis of written complaint supported by affidavit, the learned trial court has not committed illegality by taking cognizance. Therefore, prayed for dismissal of the petition.

4. Heard learned counsel for both the parties and perused the record and impugned order.

5. It is apparent that the respondent/complainant has filed a written complaint under Section 138 of the NI Act which is supported by an affidavit, on which basis, the learned Court has taken cognizance against the applicant for an offence under Section 138 of the NI Act and in view of that, there is no legal requirement for recording of the statement under section 200 of Cr.P.C. for which it is profitable to quote here the provision of Section 200 of Cr.P.C.

"200. 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."

6. On perusal of the aforesaid provision of Section 200 of Cr.P.C. it is not incumbent on the Magistrate that before taking cognizance a detailed statement of the complainant on oath ought to be recorded; only a substance can be recorded and if, in a particular case, the complainant has filed an affidavit in support of the written complaint then certainly law does not require that oral or written statement of the complainant ought to be recorded by the trial court.

7. Moreover, on perusal of entire record it is apparent that statement of the complainant has already been recorded in the presence of the applicant' accused and the applicant/accused has also cross-examined him in detail and now, the case is fixed for final arguments. In such circumstances, irregularity occurred in non-examination of the complainant under the provision of Section 200 of Cr.P.C. does not itself vitiate the entire trial which can be quashed under the provision of Section 482 of Cr.P.C. because it does not affect any substantial right and defence of the applicant/accused. For this purpose, this type of irregularity does not come within the purview of Section 461 of Cr.P.C. on which basis the whr le proceeding can be vitiated.

8. In view of aforesaid provision of law as provided under Section 200 of Cr.P.C. as well as under Sections 460 and 461 of Cr.P.C., in my considered opinion, rights and defence of the applicant/accused will not affect by non-compliance of provision of Sectio