Sanjeev Kumar vs Birds and Birds Hotel Pvt. Ltd.

J.P. Singh, Judge

Sanjeev Kumar Mengi has filed this petition seeking quashing of proceedings in case titled M/s Birds and Birds Hotel Pvt. Ltd. v. M/s Super

Apex Tutorials Organisation and others, pending before Judicial Magistrate First Class, Chenani. A complaint appears to have been filed by M/s

Birds and Birds Hotel Pvt. Ltd. against Super Apex Tutorials Organisation and others, on the premises that Harbans Lal Mengi in discharge of

liability of M/s Super Apex Tutorial organisation, issued an account payee's cheque for an amount of Rupees twenty lacs drawn on the Citizen Co-

operative Bank Limited, Vinayak Bazar Branch, Jammu, which is stated to have been dishonoured, resulting in filing of the complaint. During the

course of this petition, it transpired from the records of the learned Magistrate that the statements of complainant, Dr. Bharat Indu Dutta and his

two witnesses, namely Anil Sharma and Ram Singh, had been recorded without administering oath. The omission of the learned Magistrate to

record the statements of the complaint and his witnesses upon oath, renders the evidence recorded by the learned Magistrate inadmissible on

evidence. Section 200 of the Code of Criminal Procedure, 1989, contemplates that statements of complainant and his witness are mandatory

required to be recorded upon oath and not otherwise. It is on the basis of these statements that further proceedings may be initiated by the

Magistrate to consider the case of the complainant for its further process in terms of Section 204 of the Code of Criminal Procedure.

Shri O. P. Thakur, learned counsel of the complainant, had nothing to say on this omission discovered during the course of hearing of this

petition. He, however, submitted that because of the lapse on the part of the Magistrate, the complainant should not suffer.

I have considered the submissions of learned counsel for the parties an am of the view that it would be in the fitness of circumstances, if the

order of the trial Court dated 20th of August, 2004, when process was issued against the petitioner, is set aside. I, accordingly, while setting aside

order dated 20th of August, 2004, remand the complaint to learned Magistrate for recording the statements of complaint and his witnesses afresh

after administering oath upon them and, thereafter, to proceed in the case in terms of Section 204 of the Code to find as to whether or not a case

had been made out in the complaint by the complainant against the accused. Needless to say that before considering the issuance of process or

otherwise, the Magistrate shall apply his mind on the material before him and shall disclose his mind by giving reason for proceedings with the case

or for acting otherwise.

With the aforesaid observation, this petition u/s 561-A Cr.P.C. is accordingly, disposed of.