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2009 DIGILAW 1459 (BOM)

K. K. Enterprises v. Nirmal Udyog Office

2009-11-06

S.S.SHINDE

body2009
Judgment : This application is filed challenging the order dated 6th October, 2006 passed by the Judicial Magistrate First Class, 20th Court, Corporation Court No.1, Nagpur in Criminal Complaint Case No.15808/2006. 2.The non-applicant herein filed Criminal Complaint Case No.15808/2006 before the Judicial Magistrate First Class, 20th Court, Corporation Court No.1, Nagpur against the present applicant. On said complaint the Judicial Magistrate First Class, 20th Court, Corporation Court No.1, Nagpur passed order on 6th October, 2006 issuing process under Section 138 of the Negotiable Instruments Act, 1881 against the applicant. Hence, this criminal application challenging the order dated 6-10-2006 passed by the Judicial Magistrate First Class, 20th Court, Corporation Court No.1, Nagpur in Criminal Complaint Case No.15808/2006. 3.The learned Counsel appearing for the applicant submitted that the impugned order is not sustainable since the said order is not passed by the Magistrate after following the provisions of Section 200 of the Criminal Procedure Code. The learned Counsel further submitted before issuing the process it was necessary for the Magistrate to examine the complainant on oath and then only take the cognizance of the offence and issue process. 4.The learned counsel for applicant invited my attention to the reported case in Maharaja Developers & another vs. Udaysing s/o Pratapsinghrao Bhonsle and another reported in 2007 All MR (Cri) 1339, and submitted that the point raised in this application is no more res integra and same has been settled by this Court. The learned Counsel for the applicant invited my attention to para 27 of the said judgment and submitted that it is mandatory for the Magistrate to examine the complainant on oath before issuing the process. Therefore, learned Counsel has submitted that this application deserves to be allowed. 5.I have heard learned Counsel for the applicant at length. Perused the contents of the application, annexures thereto, impugned order passed by the Judicial Magistrate First Class, 20th Court, Corporation Court No.1, Nagpur and also judgment cited by the learned Counsel for the applicant, I am of the considered view that application deserves to be allowed on the ground that before order of issuing process passed by the Judicial Magistrate First Class, 20th Court, Corporation Court No.1, Nagpur, the complainant was not examined on oath. The Hon'ble Division Bench of this Court in case of Maharaja Developers & another vs. Udaysing s/o Pratapsinghrao Bhonsle and another cited Supra in para 27 and 30 has held as under :- "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." "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." 6. The Judicial Magistrate First Class, 20th Court, Corporation Court No.1, Nagpur before issuing process to the applicant did not examine the complainant on oath. Hence, the impugned order is set aside. Criminal application is allowed to the above extent and disposed of. Rule is made absolute in above terms.