Chitgopekar Manohar vs Dasari Samba Shiva Rao Another
2021 Latest Caselaw 4607 Tel

           THE HON'BLE Dr. JUSTICE G. RADHA RANI

              CRIMINAL PETITION No.6336 of 2013
ORDER:

This Criminal Petition is filed by the petitioner - accused under

Section 482 Cr.P.C. to quash the proceedings in CC No.64 of 2013 on

the file of the VIII Special Magistrate, L.B. Nagar at Hastinapuram,

Ranga Reddy District.

2. The case of the petitioner in brief was that the 1st respondent

- complainant lodged a complaint against the petitioner under Section

200 Cr.P.C. before the XI Metropolitan Magistrate, Cyberabad at L.B.

Nagar for the offence under Section 138 of the Negotiable Instruments

Act (for short 'NI Act'). The learned Magistrate, without examining

the complainant on oath as contemplated under Section 200 Cr.P.C.,

had taken cognizance of the complaint on file accepting the sworn

affidavit of the complainant and issued summons to the petitioner.

The same was violative of Section 200 Cr.P.C., and hence, liable to be

quashed.

3. Heard the learned counsel for the petitioner. Learned counsel

representing the 1st respondent reported that he had given no objection

to the 1st respondent.

4. Learned counsel for the petitioner submitted that the

1st respondent filed a false case against the petitioner only with a

malafide intention even though there was no legally enforceable debt

between the petitioner and the 1st respondent. Even if the entire

allegations were taken at their face value and accepted in entirety, Dr.GRR,J

they would not prima facie constitute any offence or make out a case

against the petitioner under Section 138 of the NI Act. He further

submitted that Section 200 Cr.P.C. envisages that before taking

cognizance of the offence, the Magistrate should examine the

complainant on oath, but admittedly, the learned Magistrate did not do

so, but accepted the sworn affidavit of the complainant and took the

case on file, which was violative of Section 200 Cr.P.C. He relied

upon the judgment of the High Court of Andhra Pradesh in

P.Ravinder Reddy v. Nalamalapur Subba Reddy and another1 in

support of his contention.

5. Perused the record. The record would disclose that the 1st

respondent - complainant filed a complaint against the petitioner

alleging that the petitioner approached the complainant on 29.08.2010

for a loan of Rs.1,80,000/- and the complainant advanced the said

amount to the petitioner as hand loan and the petitioner executed a

demand promissory note in favour of the complainant agreeing to

repay the loan amount with interest at 24% per month. The petitioner

failed to repay the amount and on the demand of the complainant, he

issued a cheque dated 06.09.2012 towards discharge of the loan

amount and the said cheque was dishonoured vide cheque return

Memo dated 07.09.2012 for the reason "funds insufficient". The

complainant got issued a legal notice on 03.10.2012 to the petitioner

demanding to repay the cheque amount. The petitioner issued a reply

notice dated 15.10.2012 with false allegations, as such, the

2013 (1) ALD (Crl.) 929 (AP) Dr.GRR,J

complainant lodged the complaint. The said complaint was taken on

file by the learned Magistrate basing on the sworn affidavit filed by

the complainant. The petitioner was challenging the same.

6. In the judgment relied upon by the learned counsel for the

petitioner in P. Ravinder Reddy case (supra) this Court held that:

"3. Section 200 Cr.P.C. envisages that before a Magistrate takes cognizance of the offence on complaint, he shall examine the complainant on oath. Thus, examination of the complainant is sine quo non for taking a private complaint on file. Admittedly, the learned Judicial First Class Magistrate did not do so, but, accepted the sworn affidavit of the de facto complainant and had taken the case on file. As rightly submitted by Sri E.Satish Kumar, learned counsel for the petitioner, taking the case on file by the learned Magistrate without recording the sworn statement of the complainant was violative of Section 200 Cr.P.C. and is not sustainable."

7. Considering the facts of the above case, which were aptly

applicable to the facts of the present case, it is considered fit to quash

the proceedings against the petitioner in CC No.64 of 2013 on the file

of the VIII Special Magistrate, L.B. Nagar at Hastinapuram, Ranga

Reddy District, as the sworn statement of the complainant was not

recorded by the trial Court.

8. Accordingly, the Criminal Petition is allowed quashing the

proceedings against the petitioner - accused in CC No.64 of 2013 on

the file of the VIII Special Magistrate, L.B. Nagar at Hastinapuram,

Ranga Reddy District.

Miscellaneous petitions pending, if any, shall stand closed.

_____________________ Dr. G. RADHA RANI, J December 27, 2021 KTL