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2008 DIGILAW 3628 (MAD)

Amina Beevi v. Abdul Jabbar

2008-09-30

K.N.BASHA

body2008
Judgment :- 1. The Petitioner, who has been implicated for the offence under Section 138 of the Negotiable Instruments Act, has come forward with this Petition, seeking for the relief of quashing the proceedings pending in C.C. No.159 of 2003 on the file of the Judicial Magistrate No.II, Mannargudi, Tiruvarur District. 2. The learned counsel appearing for the Petitioner contended that the Complaint was filed before the Judicial Magistrate on 28. 2003 and the same was posted on 9. 2003 for "Check and Call" and on 9. 2003 even without examining the petitioner as required under Section 200 of the Cr.P.C., the learned Magistrate straightaway took cognizance of the offence against the accused/petitioner herein and issued summons to the petitioner for the offence under Section 138 of the Negotiable Instruments Act. It is also contended that the learned Judicial Magistrate has committed error of law in taking cognizance of the offence, even without recording the sworn statement as contemplated under Section 200 of the Cr.P.C. and as such, the order, dated 9. 2003, taking cognizance of the offence itself is unsustainable in law. The learned Counsel for the petitioner further contended that the illegality is very much clear from the order, dated 9. 2003, which is filed along with the impugned Complaint. Therefore, it is submitted that the impugned Complaint is liable to be quashed. 3. Per Contra, Mr. N. Doraisamy, learned Legal Aid Counsel appearing for the respondent would contended that even assuming that there is some illegality or irregularity by not recording the statement before taking cognizance of the offence is only a curable defect and as such, the Complaint is not liable to quashed. 4. I have carefully considered the rival contentions put forward by either side and also perused the impugned Complaint as well as the order dated 9. 2003, taking cognizance of the offence and issuing summons to the accused. 5. A perusal of the impugned Complaint coupled with the order passed by the learned Magistrate, dated 9. 2003, makes it crystal clear that the learned Magistrate has taken cognizance of the offence under Section 138 of the Negotiable Instruments Act without recording the statement of the complainant and his witnesses, if any, as contemplated under Section 200 of the Cr.P.C. and straightaway passed the impugned order dated 9. 2003, makes it crystal clear that the learned Magistrate has taken cognizance of the offence under Section 138 of the Negotiable Instruments Act without recording the statement of the complainant and his witnesses, if any, as contemplated under Section 200 of the Cr.P.C. and straightaway passed the impugned order dated 9. 2003 issuing summons to the accused holding that there is a prima facie case made out against the accused. Therefore, the impugned order passed by the learned Magistrate dated 9. 2003 issuing process is in flagrant violation and contravention of the provision under Section 200, Cr.P.C. This Court is of the considered view that this is a curable defect and as such this Court is constrained to set aside the impugned order dated 9. 2003 passed by the learned Magistrate in C.C. No.159 of 2003 only in respect of issuing summons under Section 204, Cr.P.C. to the petitioner while confirming the said order dated 9. 2003 passed in C.C. No.159 of 2003 taking cognizance of the offence under Section 138 of the Negotiable Instruments Act. The Learned Magistrate is directed to record the statement of the complainant under Section 200, Cr.P.C. and thereafter, to decide whether to dismiss the Complaint under Section 203, Cr.P.C. or to issue process to the petitioner under Section 204, Cr.P.C. 6. With the above direction, this Petition is partly allowed. Consequently, connected Miscelleneous Petition is closed. 7. Before parting with this Petition, this Court place it on record the commendable services rendered by Mr. N. Doraisamy, the learned counsel who has appeared as Legal Aid Counsel for the respondent and argued the case effectively. Mr. N. Doraisamy, learned Legal Aid Counsel is entitled to receive an amount of Rs.2,500/-(Rupees two thousand five hundred only) as remuneration from the Madras High Court Legal Services Authority, High Court Buildings, Chennai.