Sanjeev Kumar Mengi vs Birds and Birds Hotel Pvt. Ltd.

J.P. Singh, J.—Sanjeev Kumar Mengi has filed this petition seeking quashing of proceedings in case titled Birds and Birds Hotel Pvt. Ltd. v.

Super Apex Tutorials Organisation and Ors., pending before Judicial Magistrate First Class, Chenani. A complaint appears to have been filed by

M/s. Birds and Birds Hotel Pvt. Ltd. against M/s. Super Apex Tutorials Organisation and others, on the premise 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 Citizens Cooperative 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 complainant and his witnesses upon oath, renders the evidence recorded by the learned Magistrate

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

mandatorily 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 for 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 and 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 complainant 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 reasons for proceeding with the

case or for acting otherwise.

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