Karnataka High Court
Lakshmikanth vs Madhu P B on 17 October, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF OCTOBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.747 OF 2020
BETWEEN
LAKSHMIKANTH
AGED ABOUT 46 YEARS
S/O S ARMUGHAM
R/AT DOOR NO 878,
'SHREEPRADA',
13TH MAIN ROAD,
2ND STAGE, NAGARAVHAVI,
VINAYAKA LAYOUT
BENGALURU -560072
... PETITIONER
(BY SRI DR. S. ARUMUGAM, ADVOCATE)
AND
MR. MADHU P B
AGED ABOUT 35 YEARS
S/O B K PAPANNA
H NO 128, 5TH CROSS
ANNAPOORNESHWARI LAYOUT
KENGERI
BENGALURU - 560060
... RESPONDENT
(BY SRI VIJAY SHETTY B, ADVOCATE)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF CR.P.C PRAYING TO QUASH THE ORDER OF COGNIZANCE
TAKEN BY THE XXI ADDL.C.M.M., BENGALURU ON 23.07.2019
IN C.C.NO.16828/2019 FOR THE OFFENCE P/U/S 138 OF N.I.
ACT AT ANNEXURE-A1.
THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
2
ORDER
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the impugned order of taking cognizance against the petitioner-accused for the offence punishable under Section 138 of N.I. Act vide impugned order dated 23.07.2019 in P.C.R.No.7799/2019.
2. Heard the arguments of learned counsel for the petitioner and learned counsel for the respondent.
3. The case of the petitioner is that the respondent herein has filed a private complaint under Section 200 of Cr.P.C. for the offence punishable under Section 138 of N.I. Act. Upon filing the complaint, the learned magistrate posted the matter for recording the sworn statement and after recording the sworn statement, cognizance was taken and issued summons to the petitioner which is against the law. Hence the petitioner is before this Court by challenging the same for quashing the impugned order of cognizance after recording sworn 3 statement. Learned counsel for the petitioner has relied upon the judgment of the Co-ordinate Bench of this Court in the case of State By A. Mahadeva vs. Papireddy reported in ILR 1988 KAR 666.
4. Learned counsel for the petitioner has seriously contended that the order sheet of the learned Magistrate reveals that the matter has been posted for recording sworn statement without taking cognizance, therefore there is a clear violation of the law. As per the judgment of the High Court as well as the Hon'ble Supreme Court, the learned Magistrate ought to have taken cognizance and thereafter, the matter could be posted for taking or recording sworn statement of the witnesses. Therefore directly recording the sworn statement and thereafter taking cognizance is violation of Sections 190 and 200 of Cr.P.C. Hence, prayed for quashing the same.
5. Per contra, learned counsel for the respondent contented that the learned Magistrate though ordered to put up the record after registering the PCR and the 4 complaint as well as the sworn statement already filed it is referred in the first paragraph of the impugned order thereafter taking cognizance that is on the same day. Even for taking cognizance for second time, there is no bar under the law. Learned counsel has relied upon the judgment of the Co-ordinate Bench of this Court in the case of V.S. Joshi and Another vs. N.G.Bhat Chitrigi and Another reported in 2006 (2) KCCR 819.
6. Having heard the arguments, on perusal of the records and also on perusal of the judgment of the Co- ordinate Bench of this Court in the case of Mahadeva vs. Papireddy stated supra, wherein, at paragraph No.8 of the judgment, the Co-ordinate Bench of this Court has relied upon the judgment of the Hon'ble Supreme Court wherein it is held as under:
"8. The Supreme Court also in GOPAL DAS SINDHI AND OTHERS v. STATE OF ASSAM AND ANOTHER, AIR 1961 SC 986 has stated in para
7 on page 988 as :-
5
"When the complaint was received by Mr. Thomas on August 3, 1957, his order, which we have already quoted, clearly indicates that he did not take cognizance of the offences mentioned in the complaint but had sent the complaint under Section 156(3) of the Code to the Officer Incharge of Police Station, Gauhati, for investigation. Section 156(3) states "Any Magistrate empowered under Section 190 may order such investigation as above mentioned."
Mr. Thomas was certainly a Magistrate empowered to take cognizance under Section 190 and he was empowered to take cognizance of an offence upon receiving a complaint. He, however, decided not to take cognizance but to send the complaint to the police for investigation as Sections 147, 342, and 448 were cognizable offences. It was, however, urged that once a complaint was filed the Magistrate was bound to take cognizance and proceed under Chapter XVI of the Code. It is clear, however, that Chapter XVI would come into play only if the Magistrate had taken cognizance of an offence on the complaint filed 6 before him, because Section 200 states 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 and shall be signed by the complainant and the witnesses and also by the Magistrate. If the Magistrate had not taken cognizance of the offence on the complaint filed before him, he was not obliged to examine the complainant on oath and the witnesses present at the time of the filing of the complaint. We cannot read the provisions of Section 190 to mean that once a complaint is filed, a Magistrate is bound to take cognizance if the facts stated in the complaint disclose the commission of any offence. We are unable to construe the word 'may' in Section 190 to mean 'must'. The reason is obvious. A complaint disclosing cognizable offences may well justify a Magistrate in sending the complaint, under Section 156(3) to the police for investigation. There is no reason as to why the time of the Magistrate should be wasted when primarily the duty to investigate in cases involving cognizable offences is with the police. 7
On the other hand, there may be occasions when the Magistrate may exercise his discretion and take cognizance of a cognizable offence. If he does so then he would have to proceed in the manner provided by Chapter XVI of the Code."
The said Supreme Court decision is an authority for the proposition that if the Magistrate wants to proceed under Section 200 Cr.P.C. he must take cognizance of the offence and after taking cognizance of the offence he must proceed under Section 200 Cr.P.C. and the subsequent Sections."
7. The another Co-ordinate Bench of this Court in the case of V.S. Joshi stated supra, wherein, at paragraph No.9, it is categorically held as under:
"9. The Magistrate need not specifically state in his order that he has taken cognizance of the offences. Taking of cognizance by the Magistrate can be inferred from the facts and other material on record. The very fact that the Court below has decided to record the sworn statements after perusing the complaint itself 8 would mean that Magistrate has applied his mind and has taken cognizance of the offences at the initial stage itself. Hence, it can be safely said that the Magistrate has applied his mind and thereafter, recorded the sworn statements of the witnesses. Thus, the subsequent observation of the Learned Magistrate at the time of passing the aforesaid order that the cognizance taken becomes redundant and shall have to ignored. Even otherwise, it may amount to taking cognizance or applying mind to the facts of the case for the second time, at the time of passing of impugned order and the same is not barred. Hence the same cannot be said to be illegal. Moreover, the order of issuing process cannot be set aside merely on such hypertechnical ground. Added to it, no prejudice is caused to the petitioners by non mentioning in the order sheet while proceeding to record sworn statements of the witnesses, that the cognizance is taken. It is not a mandate of law that the Magistrate should mention that he has taken cognizance of the offence, before recording sworn statement. In view of the 9 same, I do not find any reason to interfere in the order passed by the Court below."
8. Based upon the rival citation produced by learned counsel for the petitioner, it is a well settled process of law that the Magistrate has to take the cognizance and post the matter for recording the statement of the complainant and thereafter, proceed to issue notices. The Hon'ble Co-ordinate Bench of this Court in the case of V.S. Joshi stated supra, wherein, it is categorically stated that when the Magistrate posted the matter for recording the statement without mentioning the word as taking cognizance, it cannot be said that the Magistrate has not applied the mind and thereafter, taking cognizance for second time is not a bar under the law. Based upon the principles laid down by the Hon'ble Co- ordinate Bench of this Court in the case of V.S. Joshi and on perusal of the impugned order passed by the Magistrate in the case on hand which is read as under:
"Complainant present.10
Complainant has filed this complaint seeking for penalizing the accused for the offence punishable under Section 138 of N.I. Act.
He also filed sworn statement by way of affidavit in other words evidence on affidavit Under Section 145(1) of NI Act and documents along with complaint, whereas said documents are marked as ExP1 to Ex.P.6, Ex.P1(a). In view of directions given by Hon'ble Apex Court in the judgment reported in (2014) 5 SCC 590 (Indian Bank Association & others V/s Union of India) above affidavit is treated as evidence of complainant by way of affidavit.
Heard.
Perused the complaint and evidence affidavit and documents produced along with complaint as well as list of witnesses.
On perusal of the same, at this stage, prima- facie, they constitute the offence punishable under Section 138 of NI Act and there is sufficient material to proceed against the 11 accused for the above said offence. Hence, I proceed to pass the following:
ORDER Cognizance of the offence is taken against the accused for the offence punishable u/s 138 of NI Act.
Register a criminal case against accused in Register Number III, for the said offence.
Issue summons to accused if P.F., RPAD/speed post and copies of complaint, affidavit and list of documents are furnished.
Returnable by 26.08.2019."
9. On careful reading of the order passed by the Magistrate on filing of the complaint, he has already put up the records by registering the PCR, thereafter in the paragraph No.1, it is stated the fact of the case and where in this case, when sworn affidavit also filed along with the complaint, it is considered as a sworn statement recording and also evidence of the complainant by way of affidavit 12 and thereafter, taking the cognizance. Of course in the first paragraph, the learned Magistrate has not stated that he has taken the cognizance and thereafter posted the matter for recording the statement. But this statement along with the complaint both of them were filed together and based upon the complaint as well as the sworn statement, the learned Magistrate took cognizance. Therefore, the citation relied by learned counsel for the petitioner in the case of Mahadeva vs. Papireddy is not applicable to the case on hand. Merely in the first paragraph, the learned Magistrate has not stated cognizance was not taken and later in the last paragraph, on the same day, at the same time by a single order it has taken cognizance and issued the process. Therefore, it cannot be said that he has not taken the cognizance thereafter posted the matter for recording statement but both together has been done by learned Magistrate. Therefore, there is no illegality in taking cognizance and issuing process to the accused-petitioner for summoning him to appear before the Court. Therefore the petition is devoid of merits and liable to be dismissed. 13
10. Accordingly, the petition is dismissed. In view of disposal of the main petition, pending I.A.No.1/2020 does not survive for consideration and the same is disposed of.
Sd/-
JUDGE GBB