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NAFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CRMP No. 1064 of 2017

Pukeshwar Prasad S/o Visheshar Ram Sen Aged About 40 Years

R/o Village- Newari, Tahsil- Simga, Police Station Suhela,

District- Baloda Bazar- Bhatapara, Chhattisgarh.

---- Petitioner

Versus

Krishna Kumar Sahu S/o Shankar Lal Sahu, Aged About 45

Years Occupation Jail Police, R/o Up Jail, Gariyaband, District

Gariyaband, Chhattisgarh.

---- Respondent

For the Petitioner

:

Shri Sunil Tripathi, Advocate.

Hon'ble Shri Justice Rajendra Chandra Singh Samant

Order on Board

18.08.2017

Heard on admission.

1. This petition has been brought with prayer to issue specific direction to

the Trial Court with respect to the pending proceedings based on the

complaint filed by the petitioner

2. Learned counsel for the petitioner submits that a complaint for

prosecuting the respondents under Section 138 of Negotiable

Instrument Act, 1881 was filed before the Trial Court alongwith

affidavit as per the requirements of Section 145 of Negotiable

Instrument Act. The Trial Court on receiving the complaint has not

taken cognizance and has not registered the case. On the contrary

date has been fixed for recording of statements prior to taking

congnizance of offences, which is not in accordance with the law.

3. Heard and perused the documents attached with the record.

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4. Section 142 of Negotiable Instrument Act, 1881 specifically

provides the manner, in which the Court shall take cognizance

upon filing a written complaint within limitation. This is specific

direction under the provisions that Court shall be empowered to

take cognizance of any offence under Section 138 of Negotiable

Instrument Act, only on the basis of the filing of complaint in

writing alongwith necessary affidavit as provided under Section

145 of Negotiable Instrument Act. Although procedure for trial of

complaint cases is applicable in such cases, but clearly the

punishment provided under Section 138 of Negotiable Instrument

Act, places it in the category of summons cases for which there is

no specific procedure, provided under the Code of Criminal

Procedure for the requirement of recording of statements before

taking cognizance of offence as is specifically provided for the

cases for warrant trial. Hence, for these reasons, the proceedings

adopted by the Trail Court does not conform to any of the law

provided. Hence for these reasons, this petition is allowed at the

motion stage without issuance of any notice to the respondent.

5. The Trial Court is directed to consider of taking congnizable offence

and registering the case and to proceed in accordance with the

law.

6. Petition is stands disposed of.

Sd /-

Jamal

(Rajendra Chandra Singh Samant)

Judge