K.S. Mallikarjuna Prasanna vs Leo Earth Movers

L. Sreenivasa Reddy, J.—Heard the Learned Counsel as both sides.

Since identical questions of law are involved in all these petitions, they were heard together and one being disposed of by a common order. In all these cases, the complainant as well as the accused are common. These petitions are filed u/s 482 Cr.P.C. challenging the orders of the Magistrate taking cognizance after recording the sworn statements of the complainant and ordering process against the accused for offences u/s 138 of the Negotiable Instruments Act.

Sri Kulkarni, Learned Counsel appearing for the petitioner contended before me that the learned Magistrate has committed a grave mistake in taking cognizance of the offences after recording the sworn statement of the accused and he should have taken cognizance of the offences before the examination of the complainant u/s 200 Cr.P.C.

Per contra, Sri Subhash B. Adi, Learned Counsel for the respondent contended before me that even if the Magistrate has taken cognizance after recording the sworn statement of the complainant it would not vitiate the trial and on the facts and circumstances of the case, it may be inferred that the learned Magistrate has taken cognizance after recording the sworn statement of the complainant.

Learned Counsel for the petitioner has produced the order sheets in all these cases. It is clear from the order-sheet that no cognizance was taken before recording the sworn statement of the complainant and it is only after recording the sworn statement, cognizance has been taken and process ordered against the accused for offences u/s 138 of the Negotiable Instruments Act,

In support of his contention, Sri Kulkarni, placed reliance on two decisions rendered by this Court. In REVANAPPA v. S.N. RAGHUNATH 1982 (2) KARLJ 350 it has been held that, where on a private complaint the Magistrate straight away proceeded to examine the complainant and his witnesses and thereafter came to the conclusion that it was fit case to take cognizance of the offence against the accused, it is opposed to the mandatory previsions of law. In the case of D.P. SHARMA v. C.R. GOWDA ILR 1983 Kar 153 a Division Bench of this Court held that, the examination of the complainant on oath without taking cognizance of an offence would definitely render the subsequent proceedings invalid. Therefore, there cannot be any doubt . that a Magistrate has to take cognizance before proceedings to record the sworn statements of the complainant and his witnesses if any present, and taking cognizance after the examination of the complaint is impermissible in law and it would vitiate the entire proceedings. Sri Kulkarni also placed reliance on a decision of this Court in State Vs. Papireddy, wherein it has been held that cognizance should precede recording of sworn statements and issuing process along with taking cognizance simultaneously is bad at law vitiating the entire proceedings.

Sri Subhash B. Adi appearing for the respondent placed reliance on a decision of this Court in the case of V. N. Samant Vs. K.G.N. Traders and another, and contended that taking cognizance after examination of the complainant does not vitiate the proceedings. But in view of the decisions of the Division Bench of this Court in D.P SHARM''s case, the decision in M/s. KGN TRADERS'' case is no longer good law.

In my view, the impugned orders passed by the learned JMFC, Court, Gadag, in the above cases are illegal and contrary to Section 200 Cr.P.C.

In the result, for the aforesaid reasons, all these petitions are allowed. The impugned orders passed by the learned Magistrate against the petitioners-accused are hereby set aside. The matters are remitted to the learned Magistrate with a direction to follow strictly the procedure laid down in Chapter XV of the Code of Criminal Procedure and dispose of the cases in accordance with law.