COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. JUDGMENT Arun Kumar Gupta v. State of Rajasthan SB CRIMINAL MISC. PETITION NO.1145/2010. Under Section 482 Cr.P.C & Ors.

PRESENT HON’BLE MR. JUSTICE S.P. PATHAK Mr. Kailash Tailor for the petitioner. Mrs. Rekha Madnani PP for the State. BY THE COURT:- By this criminal misc. petition, the petitioner has challenged the order dated 5.3.2009 passed by the learned Additional Chief Judicial Magistrate No.8, Jaipur city, Jaipur in complaint case no.328/2009 (Padam Prakash Khandaka Jewelers Vs. Arun Kumar) whereby cognizance of the offence under section 138 of the Negotiable Instruments Act, 1881 was taken against the petitioner and that of the order dated 22.6.2010 passed by the learned Additional Sessions Judge No.3, Jaipur city, Jaipur in Criminal Revision No.8/2010 whereby the revision petition filed by the petitioner was dismissed. Briefly stated the facts for the disposal of the present petition are that respondent no.2- M/s Padam Prakash Khandaka Jewelers filed a complaint against the petitioner under section 138 of the Negotiable Instruments Act, 1881 (here-in-after to be 2 referred as, ’the Act’) in the court of Additional Chief judicial Magistrate No.8, Jaipur city, Jaipur.

It was, inter-alia, alleged in the complaint that the petitioner purchased goods on credit from the complainant firm and gave a cheque of Rs.1,70,000/- which was produced in the bank by the firm but was dishonoured with the remark ’insufficiency of funds’. A notice was sent to the petitioner. Inspite of notice, no payment was made. The learned trial court took cognizance in the matter vide order dated 5.3.2009. The petitioner having felt aggrieved preferred a revision petition but without any success. Hence, the present petition has been filed. It has been the contention of the learned counsel for the petitioner that cognizance of offence under section 138 of the Act has been taken without recording statement under section 200 and 202 Cr.P.C. and, therefore, suffers from legal infirmity and requires to be quashed and set aside. It is also contended that the cognizance has been taken on the basis of affidavit only which is against the mandatory provisions of law.

It is further contended that the revisional court has also not properly appreciated the matter. I have considered the submissions made before me. It is to be seen that the learned trial court taking into consideration the facts stated in the complaint, affidavits filed and the documents annexed with the petition took cognizance in the matter on 5.3.2009. The learned appellate court by a detailed order relying upon several decisions passed by different High 3 Courts as well as this court dismissed the revision petition. The contention of the learned counsel that on the affidavit alone cognizance cannot be taken has been examined by this court in the case of Rakesh Sharma Vs. State of Rajasthan & another- 2010(1) NIJ 329 (Raj.). It has been held that the evidence of complainant may be given on affidavit not only during the course of trial but even pre-summoning stage, namely; before issue of process pursuant to section 204 Cr.P.C. It has also been held that the expression ’the evidence of the complainant’ used in Section 145(1) of the Act when read in the light of the words ’any person giving evidence on affidavit’, shows that the evidence of the complainant is not restricted to the evidence by way of affidavit of the complainant himself, but that it may include the evidence by way of affidavit of any other person, as a witness in support of the complainant, Section 145(1) cannot be read as carving out an exception only qua the complainant.