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2007 DIGILAW 1845 (MAD)

Kailash Chand Jain v. N. Seetharaman and others

2007-06-20

K.N.BASHA

body2007
Judgment :- 1. Learned Counsel for the petitioner submits that the petitioner has come forward in all these Petitions seeking for a direction to set aside the impugned orders passed by the learned Magistrate, dismissed the Complaints filed by the petitioner for the offence punishable under Section 138 of Negotiable Instruments Act. 2. It is submitted by the learned counsel for the petitioner that the petitioner is the complainant in all the Complaints. It is also submitted by the learned counsel for the petitioner that in all the Complaints, the date of the disputed cheques and amount borrowed by the accused and also in respect of the presentation, thereafter date of statutory notice given are clearly stated. It is also contended by the learned counsel for the petitioner that the petitioner has followed the mandatory requirements contemplated under Section 138 of Negotiable Instruments Act. It is further contented by the learned counsel for the petitioner that after recording the sworn statements of the petitioner, the learned Magistrate has dismissed all the Complaints mainly on the ground that the complainant has not given the details about the payment of loan, date of cheque and presentation of the cheque, in the sworn statements. It is submitted by the learned counsel for the petitioner that in view of the specific allegations contained in the Complaints itself in respect of all the details of payment of loan, date of issuance of cheque and the presentation of the same, the petitioner, as a complainant need not give all the details in the sworn statement. 3. It is further contended by the learned counsel for the petitioner that while recording the sworn statement the petitioner/complainant was not allowed to peruse the cheques and other relevant documents to verify the dates and other particulars. Therefore, it is contended by the learned counsel for the petitioner that the impugned Order passed by the learned Magistrate, dismissing the Complaints filed by the petitioner/complainant for the offence punishable under Section 138, Negotiable Instruments Act, are liable to be set aside. 4. Learned counsel for the petitioner placed reliance on the decision of this Court reported in Mukesh Jain S/o Prem Chand v. Balachander, 2005 (3) CTC 531, in support of his contention. 5. I have carefully considered the submissions made by the learned counsel for the petitioner and also perused the impugned orders passed by the learned Magistrate. .6. 4. Learned counsel for the petitioner placed reliance on the decision of this Court reported in Mukesh Jain S/o Prem Chand v. Balachander, 2005 (3) CTC 531, in support of his contention. 5. I have carefully considered the submissions made by the learned counsel for the petitioner and also perused the impugned orders passed by the learned Magistrate. .6. It is seen that the petitioner is the complainant in all these cases and he has filed the Complaints for the offence punishable under Section 138 of Negotiable Instruments Act. A perusal of the impugned order discloses that the learned Magistrate has dismissed the Complaints merely on the ground that the petitioner/complainant in his sworn statements has not given certain particulars regarding the date of transaction of money, date of cheque, date of presentation of the cheque into bank, name of the bank in which the cheque was presented and in respect of the dates of statutory notice given by the petitioner. 7. At the outset, this Court is of the considered view that the learned Magistrate has committed a serious error of law while passing the impugned order. The undisputed fact remains that the Complaints preferred by the petitioner contained all the necessary details viz., the date of each amount given as loan to the accused, date of cheque, date of presentation of the cheque before the particular bank, date of issuing statutory notice, etc. It is also seen that the petitioner complied with the mandatory requirements contemplated under Section 138 of Negotiable Instruments Act. Learned Magistrate simply overlooked the details contained in the Complaints and only perused the sworn statements and dismissed all the Complaints. It is also rightly pointed out by the learned counsel for the petitioner that the petitioner/complainant was not permitted to peruse the document viz., cheque and other documents at the time of giving the sworn statements. .8. In a similar matter, this Court has considered this aspect in Mukesh Jain S/o Prem Chand v. Balachander, 2005 (3) CTC 531, which reads as follows: .“5 . The complainant has to be read along with the sworn statement of the complainant recorded under Section 200 of Criminal Procedure Code and they should not be read disjunctively, since they supplement and complement each other. The complainant has to be read along with the sworn statement of the complainant recorded under Section 200 of Criminal Procedure Code and they should not be read disjunctively, since they supplement and complement each other. The scheme and purport of Sections 200, 203 and 204 of the Code are not sufficient to show that the averments in the Complaint are not to be looked into for the purpose of taking a decision either to dismiss a Complaint under Section 203 or to issue process under Section 204 of the Code. This is made clear by the reference in Section 203 to the words “if any” occurring after the words “statement on oath of the complainant”. This makes it clear that Complaint is also, at any rate, one of the records to be looked into for the purpose of taking a decision under Section 203 or 204 of the Code. It cannot be said that Court can look into sworn statement only and not the Complaint itself.” 9. This Court is of the considered view that the principle laid down by this Court in the decision cited supra is clearly applicable to the instant case. In this case also the learned Magistrate simply overlooked the averments and allegations contained in the Complaints and by placing on reliance of the sworn statements, dismissed the Complaints held that there is no prima facie case made out for the offence under Section 138 of Negotiable Instruments Act. It is also seen from the perusal of the impugned orders that the learned Magistrate has ignored the procedure contemplated under Section 203 of Cr.P.C. It is very clear that the allegations contained in the Complaint to be taken along with the sworn statement which is made crystal clear that the prima facie case under Section 138 of Negotiable Instruments Act clearly made out. 10. Therefore, this Court is constrained to set aside the impugned order passed by the learned Magistrate in all these Applications. Accordingly, the impugned orders passed by the learned Judicial Magistrate No.1, Mayiladuthurai in CC. Nos.922, 921, 923, 924, 925, 926, 927 and 928 of 2003 are set aside. Learned Judicial Magistrate No.1, Mayiladuthurai is directed to take all the above Complaints on file and proceed further in accordance with law. 11. Accordingly, the Revision is allowed.