Lakshmikanth vs Madhu P B
2022 Latest Caselaw 12486 Kant

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      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF OCTOBER, 2022

                          BEFORE

          THE HON'BLE MR. JUSTICE K.NATARAJAN

            CRIMINAL PETITION NO.747 OF 2020
BETWEEN

LAKSHMIKANTH
AGED ABOUT 46 YEARS
S/O S ARMUGHAM
R/AT DOOR NO 878,
'SHREEPRADA',
13TH MAIN ROAD,
2ND STAGE, NAGARAVHAVI,
VINAYAKA LAYOUT
BENGALURU -560072
                                          ... PETITIONER
(BY SRI DR. S. ARUMUGAM, ADVOCATE)

AND

MR. MADHU P B
AGED ABOUT 35 YEARS
S/O B K PAPANNA
H NO 128, 5TH CROSS
ANNAPOORNESHWARI LAYOUT
KENGERI
BENGALURU - 560060
                                         ... RESPONDENT
(BY SRI VIJAY SHETTY B, ADVOCATE)

      THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ORDER OF COGNIZANCE
TAKEN BY THE XXI ADDL.C.M.M., BENGALURU ON 23.07.2019
IN C.C.NO.16828/2019 FOR THE OFFENCE P/U/S 138 OF N.I.
ACT AT ANNEXURE-A1.

      THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
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                              ORDER

This petition is filed by the petitioner-accused under

Section 482 of Cr.P.C. for quashing the impugned order of

taking cognizance against the petitioner-accused for the

offence punishable under Section 138 of N.I. Act vide

impugned order dated 23.07.2019 in

P.C.R.No.7799/2019.

2. Heard the arguments of learned counsel for the

petitioner and learned counsel for the respondent.

3. The case of the petitioner is that the

respondent herein has filed a private complaint under

Section 200 of Cr.P.C. for the offence punishable under

Section 138 of N.I. Act. Upon filing the complaint, the

learned magistrate posted the matter for recording the

sworn statement and after recording the sworn statement,

cognizance was taken and issued summons to the

petitioner which is against the law. Hence the petitioner is

before this Court by challenging the same for quashing the

impugned order of cognizance after recording sworn

statement. Learned counsel for the petitioner has relied

upon the judgment of the Co-ordinate Bench of this Court

in the case of State By A. Mahadeva vs. Papireddy

reported in ILR 1988 KAR 666.

4. Learned counsel for the petitioner has seriously

contended that the order sheet of the learned Magistrate

reveals that the matter has been posted for recording

sworn statement without taking cognizance, therefore

there is a clear violation of the law. As per the judgment of

the High Court as well as the Hon'ble Supreme Court, the

learned Magistrate ought to have taken cognizance and

thereafter, the matter could be posted for taking or

recording sworn statement of the witnesses. Therefore

directly recording the sworn statement and thereafter

taking cognizance is violation of Sections 190 and 200 of

Cr.P.C. Hence, prayed for quashing the same.

5. Per contra, learned counsel for the respondent

contented that the learned Magistrate though ordered to

put up the record after registering the PCR and the

complaint as well as the sworn statement already filed it is

referred in the first paragraph of the impugned order

thereafter taking cognizance that is on the same day. Even

for taking cognizance for second time, there is no bar

under the law. Learned counsel has relied upon the

judgment of the Co-ordinate Bench of this Court in the

case of V.S. Joshi and Another vs. N.G.Bhat Chitrigi

and Another reported in 2006 (2) KCCR 819.

6. Having heard the arguments, on perusal of the

records and also on perusal of the judgment of the Co-

ordinate Bench of this Court in the case of Mahadeva vs.

Papireddy stated supra, wherein, at paragraph No.8 of

the judgment, the Co-ordinate Bench of this Court has

relied upon the judgment of the Hon'ble Supreme Court

wherein it is held as under:

"8. The Supreme Court also in GOPAL DAS SINDHI AND OTHERS v. STATE OF ASSAM AND ANOTHER, AIR 1961 SC 986 has stated in para 7 on page 988 as :-

"When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station, Gauhati, for investigation. Section 156(3) states "Any Magistrate empowered under Section 190 may order such investigation as above mentioned." Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342, and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed

before him, because Section 200 states that a Magistrate taking cognizance of an offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason as to why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police.

On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code."

The said Supreme Court decision is an authority for the proposition that if the Magistrate wants to proceed under Section 200 Cr.P.C. he must take cognizance of the offence and after taking cognizance of the offence he must proceed under Section 200 Cr.P.C. and the subsequent Sections."

7. The another Co-ordinate Bench of this Court in

the case of V.S. Joshi stated supra, wherein, at paragraph

No.9, it is categorically held as under:

"9. The Magistrate need not specifically state in his order that he has taken cognizance of the offences. Taking of cognizance by the Magistrate can be inferred from the facts and other material on record. The very fact that the Court below has decided to record the sworn statements after perusing the complaint itself

would mean that Magistrate has applied his mind and has taken cognizance of the offences at the initial stage itself. Hence, it can be safely said that the Magistrate has applied his mind and thereafter, recorded the sworn statements of the witnesses. Thus, the subsequent observation of the Learned Magistrate at the time of passing the aforesaid order that the cognizance taken becomes redundant and shall have to ignored. Even otherwise, it may amount to taking cognizance or applying mind to the facts of the case for the second time, at the time of passing of impugned order and the same is not barred.

Hence the same cannot be said to be illegal. Moreover, the order of issuing process cannot be set aside merely on such hypertechnical ground. Added to it, no prejudice is caused to the petitioners by non mentioning in the order sheet while proceeding to record sworn statements of the witnesses, that the cognizance is taken. It is not a mandate of law that the Magistrate should mention that he has taken cognizance of the offence, before recording sworn statement. In view of the

same, I do not find any reason to interfere in the order passed by the Court below."

8. Based upon the rival citation produced by

learned counsel for the petitioner, it is a well settled

process of law that the Magistrate has to take the

cognizance and post the matter for recording the

statement of the complainant and thereafter, proceed to

issue notices. The Hon'ble Co-ordinate Bench of this Court

in the case of V.S. Joshi stated supra, wherein, it is

categorically stated that when the Magistrate posted the

matter for recording the statement without mentioning the

word as taking cognizance, it cannot be said that the

Magistrate has not applied the mind and thereafter, taking

cognizance for second time is not a bar under the law.

Based upon the principles laid down by the Hon'ble Co-

ordinate Bench of this Court in the case of V.S. Joshi and

on perusal of the impugned order passed by the Magistrate

in the case on hand which is read as under:

"Complainant present.

Complainant has filed this complaint seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act.

He also filed sworn statement by way of affidavit in other words evidence on affidavit Under Section 145(1) of NI Act and documents along with complaint, whereas said documents are marked as ExP1 to Ex.P.6, Ex.P1(a). In view of directions given by Hon'ble Apex Court in the judgment reported in (2014) 5 SCC 590 (Indian Bank Association & others V/s Union of India) above affidavit is treated as evidence of complainant by way of affidavit.

Heard.

Perused the complaint and evidence affidavit and documents produced along with complaint as well as list of witnesses.

On perusal of the same, at this stage, prima- facie, they constitute the offence punishable under Section 138 of NI Act and there is sufficient material to proceed against the

accused for the above said offence. Hence, I proceed to pass the following:

ORDER

Cognizance of the offence is taken against the accused for the offence punishable u/s 138 of NI Act.

Register a criminal case against accused in Register Number III, for the said offence.

Issue summons to accused if P.F., RPAD/speed post and copies of complaint, affidavit and list of documents are furnished.

Returnable by 26.08.2019."

9. On careful reading of the order passed by the

Magistrate on filing of the complaint, he has already put up

the records by registering the PCR, thereafter in the

paragraph No.1, it is stated the fact of the case and where

in this case, when sworn affidavit also filed along with the

complaint, it is considered as a sworn statement recording

and also evidence of the complainant by way of affidavit

and thereafter, taking the cognizance. Of course in the first

paragraph, the learned Magistrate has not stated that he

has taken the cognizance and thereafter posted the matter

for recording the statement. But this statement along with

the complaint both of them were filed together and based

upon the complaint as well as the sworn statement, the

learned Magistrate took cognizance. Therefore, the citation

relied by learned counsel for the petitioner in the case of

Mahadeva vs. Papireddy is not applicable to the case on

hand. Merely in the first paragraph, the learned Magistrate

has not stated cognizance was not taken and later in the

last paragraph, on the same day, at the same time by a

single order it has taken cognizance and issued the

process. Therefore, it cannot be said that he has not taken

the cognizance thereafter posted the matter for recording

statement but both together has been done by learned

Magistrate. Therefore, there is no illegality in taking

cognizance and issuing process to the accused-petitioner

for summoning him to appear before the Court. Therefore

the petition is devoid of merits and liable to be dismissed.

10. Accordingly, the petition is dismissed.

In view of disposal of the main petition, pending

I.A.No.1/2020 does not survive for consideration and the

same is disposed of.

Sd/-

JUDGE

GBB