Karnataka High Court
Dhananjaiah. R vs Nagaraju. C on 12 December, 2022
Author: K.Natarajan
Bench: K.Natarajan
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF DECEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.5324 OF 2022
BETWEEN
DHANANJAIAH. R
S/O. RAMANNA,
AGED ABOUT 40 YEARS,
R/O. BILEDODDI VILLAGE,
GOPANAHALLI DHAKLE,
M.G. PALYA POST,
BIDADI HOBLI,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562 159. ... PETITIONER
(BY SRI PRAMOD R , ADVOCATE)
AND
NAGARAJU. C
S/O. LATE CHIKKAHYDEGOWDA,
AGED ABOUT 43 YEARS,
INDUVALU VILLAGE,
KOTHATHI HOBLI,
MANDYA TALUK-571 436. ... RESPONDENT
(BY SRI SHARATH S GOWDA, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
CR.P.C PRAYING TO SET ASIDE THE ORDER DATED 07.04.2022
PASSED BY THE PRINCIPAL CIVIL JUDGE AND J.M.F.C., MANDYA
DISMISSING THE APPLICATION FILED BY THE PETITIONER U/S
239 OF CR.P.C. IN C.C.NO.1362/2020 FOR THE OFFENCE
PUNISHABLE UNDER SECTION 138 OF NEGOTIABLE
INSTRUMENTS ACT AND ALLOW THIS CRIMINAL PETITION.
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THIS CRIMINAL PETITION COMING ON FOR ADMISSION
THIS DAY, THE COURT MADE THE FOLLOWING:
ORDER
This petition is filed by the petitioner-accused under Section 482 of Cr.P.C. for quashing the criminal proceedings in C.C.No.1362/2020 on the file of Principal Civil Judge and JMFC, Mandya for having taking cognizance against this petitioner for the offence punishable under Section 138 of NI Act.
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 filed a private complaint against the petitioner under Section 200 of Cr.P.C. read with Section 138 of N.I. Act. The learned Magistrate without taking the sworn statement of the complainant, treating the verifying affidavit as sworn statement and issued the process by taking the cognizance is not correct. He has filed application before the Magistrate under Section 239 of 3 Cr.P.C. for discharge which came to be rejected. Hence, the petitioner is before this Court. The learned counsel for the petitioner has further contended that the Magistrate after filing the complaint could have called the complainant for taking sworn statement and marking the documents and also could have taken the cognizance, but, the verifying affidavit filed by the complainant keeping as examination of sworn statement is not correct. Hence, prayed for quashing the criminal proceedings.
4. Per contra, learned counsel appearing for the respondent submits and brought to the notice of this Court that during the COVID Lockdown, there is a direction from the Division Bench of this Court in W.P.No.7338/2020, where the affidavit filed by the parties or complainant can be treated as sworn statement without their presence before the Magistrate. Therefore, the trial Court has taken cognizance treating the affidavit as sworn statement. Hence, prayed for dismissing the petition. 4
5. Having heard the arguments and on perusal of the records, especially the complaint and the affidavit filed by the respondent before the Trial Court, admittedly, the respondent-complainant filed complaint under Section 200 of Cr.P.C. and he has filed a cryptic affidavit mentioning the filing of the complaint and the cheque, it appears, it may be a verifying affidavit but not an affidavit narrating the facts of the case in order to treat the said affidavit as sworn statement. It is also well settled position of law that the sworn statement of the complainant can be treated as examination-in-chief for the purpose of cross-examination. Such being the case, the affidavit filed by the complainant is not in the form of sworn statement and it is only a verifying affidavit mentioning in one paragraph. Therefore, the learned counsel for the petitioner has rightly contented that the affidavit cannot be treated as examination-in-chief or sworn statement for the purpose of taking cognizance.
6. However, the learned counsel for the respondent submits that the Division Bench of this Court in 5 suo motu petition i.e., in W.P.No.7338/2020 has held that the presence of the complainant or examination of the complainant before the Magistrate under Section 200 of Cr.P.C. is not necessary due to Pandemic. Such being the case, the complainant could ought to have filed affidavit and that could have considered as sworn statement for the purpose of taking cognizance against the accused for the offence punishable under Section 138 of N.I. Act. Therefore, without the sworn statement the Court cannot considered as examination-in-chief. Therefore, the order under challenge for taking cognizance by the Magistrate taking verifying affidavit as sworn statement is not correct. Hence, it is liable to be set aside.
8. Accordingly, the petition is allowed.
The taking cognizance by the Magistrate against the petitioner for the offence punishable under Section 138 of N.I. Act is hereby set aside.
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However, liberty is granted to the respondent to file the affidavit in accordance with law or the learned Magistrate to proceed in accordance with law by taking the sworn statement of the complainant.
Sd/-
JUDGE GBB