JUDGMENT : 1. This petition, under section 482, Criminal Procedure Code, 1973 (for short 'the Code') has been directed by the petitioner/accused against the order dated 23-3-2009 passed by JMFC, Chachoda District Guna in M.J.C. No. 136/2007, under section 138 of the Negotiable Instruments Act, 1881 (in short 'the Act'), dismissing his application under section 203/245 of the Code and prayer of stopping the further proceedings and to discharge him in the case was rejected. 2. Respondent/complainant filed a complaint under section 138 of the Act against petitioner/accused on the facts that having developed acquaintance between them, during course of doing contract work together for one Punji Liyard Company, need of petitioner/accused of Rs. 4,50,000/- was entertained by respondent/complainant and amount advanced to him. While reminded by respondent/complainant for its repayment, petitioner/accused issued a Cheque No. 525934 to the tune of Rs. 4,50,000/- on 1-1-2007 in the name of respondent/ complainant. While it was sent for collection, it was bounded for want of funds. 3. Respondent/complainant on 29-1-2007 sent a notice to petitioner/ accused mentioning that aforesaid cheque was bounced for want of funds on 2-1-2007, hence the amount should be repaid to him, failing which, would liable him for prosecution. 4. Vide reply dated 28-2-2007, petitioner/accused submitted that two blank cheque Nos. 525934 and 525935 had been given to respondent/complainant by him, having confidence and faith on each other, with a view to make working of Punji Liyard Company smooth, for meeting the daily needs of money. Later on, it was informed by respondent/complainant to petitioner/accused that those blank cheques had been lost along with his vallot containing some other items like ATM, Credit Card etc. Then petitioner/accused instructed the bank for stopping the payment of those cheques. On the contrary, amount of Rs. 3,20,000/- had become over due on respondent/complainant but petitioner/accused did not raise any demand for that, respecting mutual relations, in good faith only. 5. On the first date of appearance in the trial Court, at the stage of substance of accusation was to be stated, petitioner/accused filed application objecting that, soon after receiving the complaint, respondent/complainant and his witnesses were not examined by the Magistrate. 5. On the first date of appearance in the trial Court, at the stage of substance of accusation was to be stated, petitioner/accused filed application objecting that, soon after receiving the complaint, respondent/complainant and his witnesses were not examined by the Magistrate. For want of compliance of provision of sections 200 and 202 of the Code, order taking cognizance of the case against him stands vitiated and complaint does not reveal complete ingredients, of the offence under section 138 of Act, in term that cheque was issued for discharge of legally enforceable debt or other liabilities hence proceeding of trial should be stopped and petitioner/accused be discharged of the offence. Respondent/ complainant, in reply, submitted that complaint under section 138 of the Act was duly supported by his affidavit. Necessary ingredients were mentioned in the complaint. Cognizance had rightly been taken. Objection of want of mention of ingredients of section 138 of the Act in the complaint, is not tenable at that stage. It is the point to be considered and decided on merits during trial. 6. In aforesaid background, learned trial Court passed the impugned order and fixed the case to state the substance of accusation to petitioner/accused. 7. Petitioner/accused assailed the impugned order in this petition on the grounds, that for want of compliance of provisions under section 200 of the Code, registration of case under section 138 of the Act against him is nothing but abuse of the process and against the law. Such non-compliance of the mandatory provision rendered whole process illegal, vitiated and liable to be quashed. 8. Per contra, impugned order was supported by the respondent/ complainant on the grounds the trial Court had committed no illegality while taking cognizance of the case on the basis of the affidavit of respondent/ complainant filed in support of complaint which contained all facts necessary to constitute offence. 9. According to section 4 of the Code- "Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. 9. According to section 4 of the Code- "Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained. (2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences." 10. According to section 5 of the Code- "Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force." 11. According to section 200 of the Code- "Examination of complainant.- A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate : Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192 : Provided further that if the Magistrate makes over the case of another Magistrate under section 192 after examining the complainant and the witnesses, the later Magistrate need not re-examine them." 12. According to section 204 of the Code- "Issue of process.- (1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be- (a) a summons-case, he shall issue his summons for the attendance of the accused, or (b) a warrant-case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction." 13. The above scheme, in general, provides that all/any offence under Indian Penal Code or under any other law, in absence of specific provisions to the contrary therein, shall be (1) investigated, (2) inquired into, (3) tried, or (4) otherwise dealt according to provisions of the Court. Insofar as scope of taking cognizance of any offence, is concerned, in opinion of Magistrate, if there are sufficient grounds for proceeding, then appearance of accused will be affected by summons or warrants as the case may be. But when in opinion of Magistrate there is no sufficient ground for proceeding, then complaint will be dismissed. 14. Learned Counsel for petitioner placed reliance on National Small Industries Corporation Limited vs. State (NCT of Delhi) and others, (2009) 1 SCC 407 , in which, it is observed that where a complaint in regard to dishonour of a cheque is made by Government company, represented by its officer, who is a public servant, whether the exemption made under clause (a) of section 200 of the Code is available ? And the answer therein was an incorporeal body is the payee, represented by a public servant, being a de facto complainant, the Magistrate need not to examine the complainant and witnesses". 15. In present case, oral examination of the complainant on oath by Magistrate has not been done. Here, it has to be seen that mere filing of affidavit in support of the complaint will satisfy the requirement of "examination on oath" as said in section 200 of the Code or not. 16. 15. In present case, oral examination of the complainant on oath by Magistrate has not been done. Here, it has to be seen that mere filing of affidavit in support of the complaint will satisfy the requirement of "examination on oath" as said in section 200 of the Code or not. 16. Before examining the provisions of the Act in this regard, it seems important to note that according to Code Magistrate has to choose between the two (1) in opinion of Magistrate, if there would be no sufficient ground to proceed, then complaint will be dismissed, or (2) Availability of sufficient ground to proceed then cognizance will be taken and attendance of accused will be affected. It is further pertinent to note, while choosing either of the option, no occasion is there for accused to address the Court. 17. Now it will be seen, whether the Act being special Act, contains its own procedure or its proceeding are totally dependent on the Code only. For that few relevant important provisions of the Act is reproduce, read as below :- Section 142. Cognizance of offences.- Notwithstanding anything contained in the Code of Criminal Procedure, 1973- (a) No Court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque. Section 145. Evidence on affidavit.- (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code." 18. Satisfaction of the Magistrate to proceed in the complaint has been recorded by way of taking cognizance under section 138 of the Act on the basis of affidavits in place of personal examination of the complainant before him is permissible or not is to be seen. Magistrate has not dispensed with the respondent/ complainant from rendering evidence at pre-trial stage. What has been done is that, satisfaction has been recorded on the basis of affidavit only. Since the Act is conceptualizing the affidavits as a mode of examination of party, nothing wrong seems to have been committed, while doing so in the case. Magistrate has not dispensed with the respondent/ complainant from rendering evidence at pre-trial stage. What has been done is that, satisfaction has been recorded on the basis of affidavit only. Since the Act is conceptualizing the affidavits as a mode of examination of party, nothing wrong seems to have been committed, while doing so in the case. After all these cases are triable by summary procedure, required to be decided in a time frame and all are compoundable also. So keeping effective opportunity of hearing to the petitioner/ accused, intact and assured, all his such attempt that may cause delay should be discouraged. 19. At pre-trial stage, if the satisfaction of the Magistrate has been recorded on the basis of affidavit, it has not caused any prejudice to the petitioner/accused in the case. Such practice of taking cognizance on the basis of affidavits is approved in (i) M/s. Amita Gas Service and another vs. Roman Gupta, 2011(1) M.P.H.T. 191 , (ii) Jitendra Singh Kushwaha vs. Bhajan Lal Rai, 2010 (II) MPJR 159 and (iii) Abhilasha Agnihotri vs. Dilip, ILR (2009) MP 1836. And further it is approved by Uttranchal High Court in Vinod Singh Negi vs. State of Uttranchal and another, 2005 Cri.LJ 3827, and by Rajasthan High Court in Rakesh Sharma vs. State of Rajasthan and another, AIR 2010 (NOC) 785 (Raj). 20. At the same time, this practice was not approved and the case was remanded back to comply with the provisions of section 200 of the Code in Banshilal vs. Abdul Munnar, 2010 (1) MPLJ (Cri.) 226. And Bombay High Court also of the view in Maharaja Developers and another vs. Udaysingh Pratapsinghrao Bhonsle and another, 2008(1) Mh.L.J. (Cri) 433 = 2007 (2) DCR 612. 21. Considering the facts and circumstances of the case and aforesaid case laws of various High Courts, I am of the considered opinion that no illegality has been committed while taking cognizance of the case on the basis of affidavit filed in support of complaint. This petition has been filed by petitioner/accused aggrieved by the order of rejection of his application by trial Court under sections 203/245 of the Code. This petition has been filed by petitioner/accused aggrieved by the order of rejection of his application by trial Court under sections 203/245 of the Code. Even otherwise, after taking cognizance of the case, there remains no stage for entertaining the relief under section 203 of the Code and at this stage section 245 of the Code also has no application, because evidence has not been started so far. 22. It is further submitted by the petitioner/accused that by way of reply dated 9-4-2009, in response to the application filed by him under section 91 of the Code, respondent/complainant admitted that this is not a matter based on any debt or liability. Rather it is on the basis of local mutual relations, pursuant to that by way of help, advance was said to have been raised. But in view of the contents of complaint, notice, reply to notice, application under section 91 of the Code, and reply to that application, it is revealed that parties have much to say regarding the transaction, that is possible only after evidence in regular trial. 23. In view of the provisions of the Act, regarding presumption under sections 118 and 139 to ascertain the nature of debt and scope of liability for repayment and further to understand the background in which the cheque was issued or it came into existence, evidence is required. Petitioner/accused placed reliance on (i) M. S. Narayana Menon @ Mani vs. State of Kerala and another, 2006 (IV) LSCT 178, (ii) Kamla S. vs. Vidhyadharan M J. and another, 2007 (II) LSCT 117, (iii) K. Prakashan vs. P. K. Surenderan, 2008 (I) LSCT 211, and (iv) Jugesh Sehgal vs. Shamsher Singh Gogi, MANISA 2010 (II) NOC 30 (SC). 24. Learned Counsel for respondent/complainant placed reliance K. N. Beena vs. Muniyappan and another, AIR 2001 SC 2895 , and I.C.D.S. Ltd. vs. Beemna Shabeer and another, (2002) 6 SC 426. 25. As discussed above, my considered opinion, Magistrate has committed no illegality while recorded his satisfaction of taking cognizance of the case under section 138 of the Act on the basis of affidavits. Whether ingredients of offence are available in the complaint or not is a mixed question of facts and law and will be decided on merits in the trial. 26. This petition seems devoid of substance and is hereby rejected.