Maharaja Developers And Anr. vs Udaysingh Pratapsinghrao ...
2007 Latest Caselaw 178 Bom

JUDGMENT

K.J. Rohee, J.

1. The issue which has been referred to this Bench is, "Is it mandatory for the Magistrate to examine the complainant who has filed complaint under Section 138 of Negotiable Instruments Act with affirmation as regards truthfulness of the facts mentioned in the complaint before issue of process under Section 200 of Cr. P.C.?"

2. It so happened that H.H. Maharaja Udaysingh Bhonsle s/o late H.H. Maharaja Pratapsinghrao Bhonsle resident of Junior Bhonsla Palace, Mahal, Nagpur (hereinafter referred to as "the complainant") filed a complaint in writing on 21-4-2006 against Maharaja Developers and Vijay Tulsiramji Dangre (hereinafter referred to as "the accused") under Section 138 of the Negotiable Instruments Act (hereinafter referred to as "the N.I. Act") on account of dishonour of cheques issued by the accused in favour of the complainant and his sister. The said complaint contained a solemn affirmation by the complainant at the foot of it. The complainant also filed certain documents along with the complaint. On perusal of the complaint and the documents filed with it, the learned Magistrate was satisfied that there was prima facie case to proceed against the accused. Hence by order dated 28-4-2006 he directed issuance of process against the accused under Section 204 of Cr. P.C. for the offence punishable under Section 138 of the N.I. Act.

3. The accused challenged the order of issuance of process by preferring Criminal Revision No. 624/2006 on the ground amongst others that there was no proper inquiry into the complaint as laid down in Sections 200 to 202 of Cr. P.C. (Chapter XV), that there was no verification of the complaint by the Magistrate and the issuance of process was erroneous. The learned 3rd Ad hoc Additional Sessions Judge rejected the revision by order dated 24-8-2006.

4. Having been aggrieved by the said order, the accused moved an application under Section 482 of the Cr. P.C. for quashing the complaint as well as the order of the Magistrate dated 28-4-2006 for issuance of process and the order of Revisional Court dated 24-8-2006 rejecting the revision.

5. The said matter was heard by one of us (Justice S.R. Dongaonkar). The learned single Judge found that there appears to be conflict of views about the legal position with regard to necessity of recording verification statement of the complainant by the Magistrate when the complaint under Section 138 of the N.I. Act is filed with affirmation in two single Bench decisions viz. Mamatadevi Prafulla-kumar Bhansali v. Pushpadevi Kailashkumar Agrawal 2005 (2) Mah LJ 1003 and Nova Electricals, Jalgaon v. State of Maharashtra and Anr. 2006 All MR (Cri) 2456 : 2006 (6) AIR Bom R 525. It was brought to the notice of the learned single Judge that on the basis of the judgment in Mamatadevi's case, the subordinate Courts are accepting the affidavits of the complainants in lieu of verification statement and are issuing process against accused. The said procedure is inconsistent with the decision in M/s. Nova Electricals. Thus there would be confusion in the subordinate Courts as to what procedure should be followed. In order to avoid further confusion regarding legal position, the reference as above was made to the larger Bench.

6. We have heard Mr. Sunil Manohar, Advocate for the accused and Mr. Masood Sharif," Advocate for the complainant at length.

7. Mr. Manohar, the learned Counsel for the accused, submitted that Section 190 in Chapter XIV of the Cr. P.C. deals with the cognizance of offences by Magistrates whereas Chapter XV deals with the procedure to be adopted in case of complaints to Magistrates. Section 190 of Cr. P.C. mentions three modes of taking cognizance of offence by Magistrate. Section 200 of Cr. P.C. casts a duty on the Magistrate taking cognizance of an offence on complaint to examine upon oath the complainant and the witnesses present, if any, to reduce the substance of such examination to writing and to sign such substance. The proviso to Section 200, however, provides that when a complaint is in writing, the Magistrate need not examine the complainant and the witnesses, if the complaint is made by a public servant acting or purporting to act in the discharge of his official duties or by a Court or if the Magistrate makes over the case for inquiry or trial to another Magistrate. Mr. Manohar submitted that setting a criminal law into motion is a serious matter and Section 200 has provided the procedure for safeguarding the interests of the accused. When the Magistrate takes cognizance on complaint and issues process against the accused, the accused is put on guard that prima facie case has been made out against him. In order to highlight these submissions, Shri Manohar placed reliance on the following cases:

i) In Gurudas Balkrishna v. C.J.M. Panji, Goa 1993 Mah LJ 1082 : 1994 Cri LJ 444 it is held as under (Paras 2 and 6):

Section 200 of the Code of 1973 requires that the complainant shall be examined and all his witnesses present shall also be examined and the statements so reduced in writing shall be signed by the complainant and the witnesses and by the Magistrate. This examination is sine qua non for the consideration of issue of process and gives an opportunity to the Magistrate to ascertain about the. truth of the allegations made in the complaint, In a way it is a safeguard for both the complainant and the accused persons. It would be the first authentic record on oath at the earliest opportunity and, therefore, can be taken help of to ascertain whether there are some additions and improvements in the prosecution case.

A private complaint is by its character very different from a case instituted on Police report. There is no inquiry by the Police, there are no statements under Section 162, and, therefore, to safeguard innocent people it is necessary to record the statements of the complainant and his witnesses as soon as possible and then looking to the credibility of that evidence take a decision about the issuance of process.

ii) In Vasant Waman Pradhan v. Dattatraya Vitthal 2004 (1) Mah LJ 487 it is held as under:

Whenever the complaint is presented in the Court in view of provisions of Section 200 of the Code, the Magistrate is obliged to examine the complainant upon oath and the substance of such examination shall be reduced to writing and shall be signed by the complainant and also by the magistrate. It is pertinent to note that word "examination" has been used in Section 200 of the Code which means that the Magistrate is obliged to put questions to such complainant and to elicit the answers from him. This section enjoins a judicial duty to be performed and it requires application of judicial mind while examining such complainant on oath. The said work is not to be left to the clerk working in such Courts. It is to be noted that when such complainant is examined on oath by Court, he is interrogated for such examination, the truth is very likely to surface because complainant knows that he is being examined on oath by the Magistrate. Generally the complaints are drafted by lawyers or their clerks at the say of the complainant and such formulated conversation is presented before the Magistrate when the complaint is filed. Therefore, in that context also such examination is the best way of surfacing the truth on record. In such examination the complainant in all probability tells the truth and truthful version of the incident which enables the Magistrate to consider by application of judicial mind whether process is to be issued or not.

iii) In Adalat Prasad v. Rooplal Jindal and Ors. it is held as under Paras 12 to 14:

Section 200 contemplates a Magistrate taking cognizance of an offence on complaint to examine the complaint and examine upon oath the complainant and the witnesses present, if any. If on such examination of the complainant and the witnesses, if any, the Magistrate if he does not want to postpone the issuance of process has to dismiss the complaint under Section 203 if he comes to the conclusion that the complaint, the statement of the complainant and the witnesses have not made out sufficient ground for proceeding. Per contra, if he is satisfied that there is no need for further inquiry and the complaint, the evidence adduced at that stage have materials to proceed, he can proceed to issue process under Section 204 of the Code.

Section 202 contemplates "postponement of issues of process". It provides that if the Magistrate on receipt of a complaint, if he thinks fit, to postpone the issuance of process against the accused and desires further inquiry into the case either by himself or directs an investigation to be made by a police officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding, he may do so. In that process if he thinks it fit, he may even take evidence of witnesses on oath, and after such investigation, inquiry and the report of the police if sought for by the Magistrate and if he finds no sufficient ground for proceeding he can dismiss the complaint by recording briefly the reasons for doing so as contemplated under Section 203 of the Code.

But after taking cognizance of the complaint and examining the complainant and the witnesses if he is satisfied that there is sufficient ground to proceed with the complaint he can issue process by way of summons under Section 204 of the Code. Therefore, what is necessary or a condition precedent for issuing process under Section 204 is the satisfaction of the Magistrate either by examination of the complainant and the witnesses or by the inquiry contemplated under Section 202 that there is sufficient ground for proceeding with the complaint hence issue the process under Section 204 of the Code.

8. While stressing the need of taking examination of the complainant and his witnesses under Section 200 of Cr. P.C. , Mr. Manohar further submitted that it is incumbent on the Magistrate to follow the procedure laid down under Section 200 of Cr. P.C. In this connection, he relied on State of Uttar Pradesh v. Singhara Singh wherein Taylor v. Taylor, (1876) 1 Ch D 426 was referred to and it was observed (Paras 7 and 8 of AIR):

Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden.

If a statute has conferred a power to do an act and has laid down the method in which that power has to be exercised. it necessarily prohibits the doing of the act in any other manner than that which has been prescribed.

9. Mr, Manohar, therefore, submitted that it is duty cast on the Magistrate by Section 200 of the Cr. P.C. to examine upon oath the complainant and his witnesses before dismissing the complaint under Section 203 of the Cr. P.C. or before issuing of process under Section 204 of Cr. P.C.

10. Mr. Masood Sharif, the learned Counsel for the complainant, on the other hand submitted that the Negotiable Instruments Act, 1881 isa special Act of which Chapter XVII deals with the cases of dishonour of cheques. It is a complete Code in itself. The complaints under Chapter XVII of the N. I. Act are to be dealt with in accordance with the procedure laid down therein. In this respect Mr. Sharif invited our attention to the provisions of Sections 4 and 5 of the Code of Criminal Procedure. They are as under

4. Trial of offences under the Indian Penal Code and other laws--

(1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

(2) All offences wider any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences.

5. Saving Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

11. Mr. Sharif submitted that Section 138 of the N.I. Act describes the offence. Section 142 deals with the cognizance of offences and Section 145 deals with the evidence on affidavit. Sections 142 and 145 read as under:

142. Cognizance of offences :--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;

(b) such complaint is made within one month of the date on which the cause of action arises under Clause (c) of the proviso to Section 138:

(Provided that the cognizance of a complaint may be taken by the Court after the prescribed period, if the complainant satisfied the Court that he had sufficient cause for not making a complaint within such period)

(c) no Court inferior to that of a Metropolitan Magistrate or a judicial Magistrate of the first class shall try any offence punishable under Section 138.

145. Evidence on affidavit:-- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974), the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code.

(2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.

12. Mr. Sharif submitted that the object of the Amending Act No. 66 of 1988 and Act No. 55 of 2002 which came into force with effect from 1-4-1989 and 6-2-2003 respectively is speedy disposal of the cases. Both Sections 142 and 145 of N.I. Act commence with non-obstante clause. Hence the provisions of Section 200 of Cr. P.C. would not come into play so as to oblige the Magistrate to examine upon oath the complainant and his witnesses before issuance of process. In this respect, he relied on the following cases:

(i) State of West Bengal v. Bejoy Kumar Bose ;

(ii) KSL and Industries Ltd. v. Mannalal Khandelwal 2006 (1) Mah LJ (Cri) 86 : 2005 Cri LJ 1201;

(ill) Mamatadevi v. Pushpadevl 2005 (2) Mah LJ 1003:

(iv) Peacock Industries Ltd. v. Budharani Finance 2006 (5) Mah LJ 162;

(v) K. Srinivasa v. Kashinath, 2004 Cri LJ 4566 (Kar):

(vi) Panda Leasing and Properties Ltd. v. Hemant Kumar Moharana 2003 (2) Crimes 220 (Ori);

(vii) Vinod Singh Negi v. State 2006 (2) DCR 586 ; 2005 Cri LJ 3827 (UTR);

(viii) Gulam Hidar All Khan v. Managing Partner, Shirdi Sai Finance Corporation 2006 (2) DCR 701 : 2006 (6) ALJ 700 (Andhra).

Mr. Sharif submitted that the provisions of Sections 142 and 145 of the N.I. Act override the provisions of Section 200 of Cr. P.C. and no fault can be found with if the Magistrate does not examine the complainant and his witnesses on oath under Section 200 of Cr. P.C. and relies on solemn affirmation of the complainant below complaint before issuance of process under Section 204 of the Cr. P.C.

13. It was urged by Mr. Sharif that it cannot be said that any valuable right of the accused is taken away by dispensing with the examination of the complainant and his witnesses on oath by the Magistrate before issuance of process. He submitted that the right of the accused is fully protected by Sub-section (2) of Section 145 of the N.I. Act under which the accused is entitled to summon and examine the complainant. Mr. Sharif further submitted that the offence under Section 138 of the N.I. Act is a technical offence and in such case few conditions have to be complied with by the complainant as contemplated under Section 138 of the N.I. Act.

14. While replying the submissions of Mr. Sharif , Mr. Manohar submitted that Section 142 of the N. I. Act does not exclude examination of the complainant and his witnesses on oath under Section 200 of the Cr. P.C. He submitted that Section 145 of the N. I. Act refers to evidence of the complainant on affidavit which does not relate to the stage before issuance of process under Section 204 Cr. P.C. Mr. Manohar submitted that a specific reference was required to be made in those sections about dispensing with the examination of the complainant and his witnesses on oath by the Magistrate. In the absence of it, it cannot be said that the provisions of N. I, Act would override the provisions of Section 200 of Cr. P.C. In this respect Mr. Manohar relied on the following cases:

i) In Mirza Iqbal Hussain v. State of U.P. AIR 1983 SC 30, it is held as under (Para 2):

Section 4(2) of the Code of Criminal Procedure provides that all offences under any law other than the Indian Penal Code shall be investigated, inquired into, tried and "otherwise dealt with according to the provisions contained in the Code of Criminal Procedure, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. It is clear from this provision that in so far as the offences under laws other than the Indian Penal Code are concerned, the provisions of the Code of Criminal Procedure apply in their full force subject to any specific or contrary provision made by the law under which the offence is investigated or tried.

ii) In N. Harihara Iyer v. State of Kerala 2000 Cr LJ 1251 (Kerala DB) it is held as under (Para 19):

We, therefore, hold that the enquiry envisaged under Section 200 is for ascertaining the truth or falsehood of the complaint and also for ascertaining whether there is any evidence in support of the complaint so as to justify the issue of process. Therefore, it. is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complainant. The object is to test whether the allegations make out a prima facie case to enable him to issue process. We are, therefore, unable to countenance the argument advanced by Mr. Sahasranaman on the scope and application of Section 200 of Cr. P.C. Likewise, the argument advanced by Mr. Sahasranaman with regard to Section 142 of the Negotiable Instruments Act has no basis as it is undisputed that the taking of cognizance of offence under the said Section has to precede the taking of sworn statement of the complainant and that cognizance should precede the recording of the sworn statement.

iii) In Pankajbhai Nagjibhai Patel v. State of Gujarat , it is held as under:

The non-obstante expression provided in Section 142 is intended to operate only in respect of three aspects and nothing more. The first is this: insofar as the offence under Section 138 is concerned no Court shall take cognizance except upon a complaint made by the payee or the holder in due course of the cheque, the second is this: so far as the offence under Section 138 of the Negotiable Instruments Act is concerned such complaint shall be made within one month of the cause of action. The third is this: for the offence under Section 138, no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of first class shall try the said offence.

15. We have carefully considered the rival submissions. We have also perused the provisions of Sections 4, 5, 190, 200, 202, 203 and 204 of Cr. P.C. as well as Sections 138, 142 and 145 of the N. I. Act. We have gone through the cases cited by the counsel for the parties.

16. In order to ascertain whether it is mandatory for the Magistrate to examine the complainant in a complaint under Section 138 of the N. I. Act with affirmation as regards truthfulness of the facts mentioned in the complaint before issuance of process under Section 200 of Cr. P.C. it is necessary to examine whether the provisions of Sections 142 and 145 of the N. I. Act which is special enactment dispenses with the said requirement of Section 200 of Cr. P.C.

17. In State of West Bengal v. Bejoy Kumar Bose (cited supra) the question that fell for decision related to the cognizance of the offences by the Special Judge under the West Bengal Criminal Law Amendment (Special Courts) Act. It was observed that in the said amendment the Legislature advisedly omitted to include Section 200 of Cr. P.C. and other provisions of the next Chapter dealing with the complaints to Magistrate. It was held that there was nothing in Section 5(1) of the Amending Act to compel the Special Judge to comply with the provisions of Section 200 Cr. P.C. It may be seen that in the said case a complaint was filed by Sub- Inspector of Police which is distinguishable from complaint by private parties. Hence the said case would not help the complainant.

18. KSL and Industries Ltd. v. Mannalal Khandelwal 2005 Cri LJ 1201 (supra) related to the examination of the complainant in respect of matters which have been stated by him on affidavit. The question about requirement of examination of the complainant and his witnesses while taking cognizance of complaint under Section 138 of N.I. Act was not before the Division Bench of this Court.

19. In Peacock Industries Ltd. v. Budharani Finance Ltd. (cited supra), the question was whether the complainant and the accused had a right to apply to the Court seeking direction to give oral examination-in-chief, of a person giving evidence on affidavit, even in respect of the facts stated therein and that if such a right is exercised, whether the Court is obliged to examine such a person in spite of the mandate of Section 145(1) of the N.I. Act. So the matter also related to adducing of evidence during trial and not at the time of taking cognizance before issue of process under Section 200 Cr. P.C. Amongst other guidelines/directions given by the learned single Judge in that case, one of the guidelines/directions was on receiving a complaint under Section 138 of the N. I. Act, the Magistrate should apply his mind to the complaint at the very inception and see whether a case is made out against the accused person/s before issuing process to them on the basis of the complaint. The complaint must contain material facts and particulars constituting an offence under Section 138 of the N. I. Act to enable the Magistrate to make up his mind for issuing process under Section 204 of the Code. The Court therein did not deal with the aspect of examination of the complainant and his witnesses by the Magistrate on oath before issuance of process under Section 200 Cr.P.C.

20. In Mamatadevi v. Pushpadevi (supra) the questions that were formulated by the Court were:

i) Whether a power of attorney can file a complaint of offence under Section 138 of N. I. Act?

ii) Who shall be the person whose sworn statement or whose examination needs to be recorded before the Magistrate for taking cognizance? And iii) Should recording of the statement by the complainant in person be imperative even in the cases where the complainant has himself not witnessed the transaction, but has since from inception of the transaction deal with through the power of attorney?

After examining the case law, the learned single Judge concluded as under:

26. Now the point to be addressed is how and in what manner the facts stated in the complaint towards dishonour of cheque under Section 138 should be proved at the stage of issue of process and even on merits. What follows is as follows:

(a) That whenever on the statements contained in the complaint, if the payee or holder in due course who is the complainant and on the basis of the statement contained in the complaint he himself has witnessed of part or full transaction which has led to the receiving of the cheque and its dishonour, the complainant alone should be the witness of the complaint.

(b) If there are some transactions or part of transactions witnessed by some other person including by a person who is power of attorney, in an eventuality where part of the transactions are witnessed by another person including the power of attorney, in such cases the complainant and such other person including the power of attorney could be the witness. In such eventualities, the power of attorney who may file a complaint for and on behalf of the complainant has to appear in his capacity as witness and not as a power of attorney.

(c) In the case of transactions, where depending upon what is disclosed in the complaint, if all transactions are undertaken by the power of attorney in total exclusion of the payee or the holder in due course i.e. title holder of such cheque, in such eventuality, the power of attorney holder in addition to his capacity to file the complaint on the basis of power of attorney, alone has to be the witness in place of complainant apart from other witnesses if involved in the transaction. Thus, power of attorney himself being a witness right from the inception in the transaction, and if such statement is incorporated in the complainant, the statement contemplated by Section 200 has to be recorded by the power of attorney for and on behalf of the complainant while doing so he does it duly as GPA and as a witness which positions are inseparable.

The above findings nowhere show that it was not mandatory for the Magistrate to examine the complainant and his witnesses before issuance of process. After answering the questions formulated by the Court, the Court proceeded to observe that Sections 145 and 146 of the N. I. Act bring in an overriding effect to what is provided in Cr. P.C. The Court further observed that:

For testing the truth and surfacing the fact which is the object of sworn statement of the complainant or evidence of the complainant and the witnesses, as contemplated by Section 200 of Criminal Procedure Code, the procedure prescribed would enable the Judge to act on the basis of affidavit of the complainant and the bank slip then filed in the Court along with the complaint. Sections 145 and 146 would thus even dispense with the recording of evidence of the complainant as contemplated by Section 200 of Criminal Procedure Code. It, however, would be open to the discretion of the Judge to put questions to the complainant if he considers it necessary.

It may be noted that these observations by the Court were not necessary for the decision of the points involved. Thus they are merely obiter dicta.

21. In State of Haryana v. Ranbir , it was pointed out that:

Obiter dicta is more or less presumably unnecessary to the decision. It may be an expression of a viewpoint or sentiments which has no binding effect. The statements which are not part of the ratio decidendi constitute obiter dicta and are not authoritative.

So these observations would not help the complainant.

22. The Single Bench decisions of Karnataka High Court, Orissa High Court, Uttaranchal High Court and Andhra Pradesh High Court no doubt support the submissions made on behalf of the complainant. However, the reasoning in the above cases run contrary to what has been held by the Supreme Court in Pankajbhai Nagjibhai Patel (supra). In the said case, it has been held by the Supreme Court that:

Non-application of the Criminal Procedure Code on "any special jurisdiction or power conferred by any other law for the time being in force" is thus limited to the area where such special jurisdiction or power is conferred. The non-obstante clause in Section 142 of the N.I. Act is intended to operate only in respect of three aspects and nothing more. The first is this : Under the Code Magistrate can take cognizance of an offence either upon receiving a complaint, or upon a police report, or upon information from any person, or upon his own knowledge except in the cases differently indicated in Chapter XIV of the Code. But Section 142 of the N. I. Act says that insofar as the offence under Section 138 is concerned no Court shall take cognizance except upon a complaint made by the payee or the other holder in due course of the cheque.

The second is this : Under the Code a complaint could be made at any time subject to the provisions of Chapter XXXVI. But so far as the offence under Section 138 of the N. I. Act is concerned such complaint shall be made within one month of the cause of action.

The third is this : Under Article 511 of the First Schedule of the Code, if the offence is punishable with imprisonment for less than 3 years or with fine only under any enactment (other than Indian Penal Code) such offence can be tried by any Magistrate. Normally Section 138 of the N. I. Act which is punishable with a maximum sentence of imprisonment for one year would have fallen within the scope of the said Article. But Section 142 of the N. I. Act says that for the offence under Section 138, no Court inferior to that of a Metropolitan Magistrate or Judicial Magistrate of first class shall try the said offence.

23. Thus it would be seen that the non-obstante clause in Section 142 of the N. I. Act does not relieve the Magistrate of his duty to examine the complainant and his witnesses on oath under Section 200 of Cr. P.C. It, therefore, follows that the provisions of Section 200 of Cr. P.C. would continue to control the inquiry or trial of an offence punishable under Section 138 of the N. I. Act.

24. In N. Harihara Iyer v. State of Kerala 2000 Cri LJ 1251 (Ker), a declaration was sought in respect of complaints lodged under Section 142 of the Negotiable Instruments Act, 1881 that for taking cognizance the examination of the complainant is not necessary under Section 200 of the Cr. P.C. After considering the relevant provisions, the Court held that (Para 19):

The enquiry envisaged under Section 200 is for ascertaining the truth or falsehood of the complaint and also for ascertaining whether there is any evidence in support of the complaint so as to justify the issue of process. Therefore, it is incumbent on the Magistrate taking cognizance on a complaint to examine upon oath the complainant and his witnesses present, if any, to satisfy himself as to the veracity of the complainant. The object is to test whether the allegations make out a prima facie case to enable him to issue process. It is undisputed that the taking of cognizance of offfence under the said section has to precede the taking of sworn statement of the complainant and that cognizance should precede the recording of the sworn statement.

25. We are fully in agreement with the view taken by the Division Bench of Kerala High Court in N. Harihara Iyer v. State of Kerala 2000 Cri LJ 1251.

26. In Nova Electricals v. State of Maharashtra 2006 (6) AIR Bom R 525 (supra) the learned single Judge of this Court held that in a complaint under Section 138 of the N. I. Act verification under Section 200 of Cr.P.C. Is to be recorded by the Court. However in the said decision, the provisions of Section 200 of Cr. P.C. only were considered and no reference was made to Section 142 or Section 145 of the N.I. Act. Hence it is a judgment per incuriam. Perhaps that is why the learned Counsel for the accused did not rely on the said ruling in support of his submission.

27. From the above discussion, we are of the considered view that the non-obstante clause in Section 142 or 145 of the N.I. Act does not override the provisions of Section 200 of Cr. P.C. and it is mandatory for the Magistrate to examine the complainant who has filed the same under Section 138 of the N. I. Act though with an affirmation as regards truthfulness of the contents of the complaint. It, therefore, follows that the Magistrate is obliged and duty bound to examine upon oath the complainant and his witnesses before issuance of process under Section 204 of Cr. P.C. though there is a solemn affirmation at the foot of the complaint by the complainant.

28. The submission of the learned Counsel for the respondent that if the Magistrates are required to record verification statement of the complainant, under Section 200 of Cr. P. C, in a complaint under Section 138 of N.I. Act, it would cause delay in disposing of the said complaint also cannot be accepted for the simple reason that the procedure laid down by law has to be followed and secondly it would not take much time if the verification statement of the complainant is recorded on the same day on which the complaint is filed or on the following day when the matter is fixed.

29. The reference is accordingly answered in the affirmative.

30. The subordinate Courts are required to follow the mandate of Section 200 of Cr. P.C. in respect of the complaints filed under Section 138 of the N. I. Act even though there is a solemn affirmation by the complainant. This judgment may be circulated to all the Magisterial Courts in the State for the sake of following uniform practice.