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2013 DIGILAW 738 (JK)

Gh. Rasool Mir v. Gh. Mohd. Bhat

2013-12-20

ALI MOHAMMAD MAGREY

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JUDGMENT : Ali Mohd. Magrey, J. 1. At the outset it may be observed that this petition under Section 561-A Cr.P.C. has been drafted in a novel style, seeking issuance of writ of Certiorari for quashing criminal proceedings in file No. 574, titled Ghulam Mohammad Bhat & others v. Ghulam Rasool Mir and another, pending before the Court of Judicial Magistrate, Magam, together with the order of cognizance drawn by the learned Magistrate and the issuance of process against the petitioners. However, without going into the question of form of the petition and the prayer made therein, the relevant facts unfurled from the records are briefly stated. The petitioners-accused and the respondents-complainants are stated to have been engaged in business of nuts inter se. The respondents filed a complaint under Section 200 Cr.P.C. read with Sections 420, 422, 405 and 506 RPC before the learned Judicial Magistrate, Magam, alleging therein that petitioner No. 1 had issued seven cheques, details whereof have been given in the complaint, in favour of respondent No. 3. The cheques, on being produced before the State Bank of India, Pattan, were returned back to the complainant No. 3 with the report insufficient funds. Similarly, petitioner No. 2 is alleged to have issued four cheques, detailed in the complaint, in favour of respondent No. 3. These cheques. Too, are stated to have been dishonoured by the Bank for reason of insufficient funds. It is further stated in the complaint that petitioner-accused No. 2 had also issued seven more cheques to the agents (assamese) of the respondents with the consent of the parties. It is alleged that the above cheques were issued by the petitioners-accused with intention to cheat the respondents-complainants. It is alleged that the petitioners-accused issued the cheques dishonestly to grab the outstanding amount of Rs. 13,15,664.00. It is also stated in the complainant that ultimately, on being approached to liquidate the amount, accused No. 1 executed an agreement undertaking to pay Rs. 50,000.00 on 20th of every month and the first installment was due on 2011, but the same was not paid. Hence the complaint. 2. The learned Magistrate in terms of order dated 01.11.2011 has taken cognizance of the complaint under Sections 420, 422, 405 and 506 RPC and ordered issuance of process to the petitioners-accused. 3. I have heard learned counsel for parties, perused the trial court record and considered the matter. 4. Hence the complaint. 2. The learned Magistrate in terms of order dated 01.11.2011 has taken cognizance of the complaint under Sections 420, 422, 405 and 506 RPC and ordered issuance of process to the petitioners-accused. 3. I have heard learned counsel for parties, perused the trial court record and considered the matter. 4. The impugned order passed by the learned Magistrate records that from the statement of the complainant and the statement of complainants witness it becomes clear that offences under Sections 420, 422, 405 and 506 RPC are prima facie made out against the accused. The order does not mention that the statements of such witnesses were recorded on oath. From perusal of the original record it appears that the statements of the witnesses have not been recorded on oath. 5. Section 200 Cr.P.C. mandates that a Magistrate taking cognizance of an Offence on complaint shall at once examine the complainant and the witnesses present, if any, upon oath and the substance of the examination shall be reduced to writing. These statements could not, therefore, form basis for taking, cognizance or for issuance or otherwise of process under Section 204 of the Code of Criminal Procedure. Failure to follow the mandate of law by the Magistrate renders the order taking cognizance and the issue of process unwarranted and illegal. Reference in this regard may be made to a decision of the Coordinate Bench of this Court in K.L. Dhbar & Ors. v. Muzaffar Ahmad, 2006 (2) JKJ 393 , wherein, in similar circumstances, the Court has held as under: "Section 200 of the Code of Criminal Procedure mandates the Magistrate to record the statements of complainant and his witnesses upon oath and not otherwise. This mandate having not been followed by the Magistrate renders his order dated 20th of May, 2004 unwarranted and illegal." The aforesaid judgment is squarely applicable in the present case. This Court also, in identical situation, in 561-A petition No. D-70/2008, titled Ram Nath Sharma & Ors. v. Baljeet Sharma & Ors., decided on 09.07.2013, while sitting at Jammu, has taken a similar view. 6. In light of the above, the cognizance order dated 01.11.2011 passed by the learned Judicial Magistrate, Magam, is rendered illegal. This petition is, accordingly, allowed and the order dated 01.11.2011 is quashed. v. Baljeet Sharma & Ors., decided on 09.07.2013, while sitting at Jammu, has taken a similar view. 6. In light of the above, the cognizance order dated 01.11.2011 passed by the learned Judicial Magistrate, Magam, is rendered illegal. This petition is, accordingly, allowed and the order dated 01.11.2011 is quashed. This also disposes of the connected Cr.M.P. Registry to remit back the trial court records forthwith alongwith a copy of this order.