LAW FOR ALL

TWO CONFLICTING DECISIONS ON SEC.145 OF NEGOTIABLE INSTRUMENTS ACT WHETHER RECORDING OF SWORN STATEMENT IS MUST = Section 138 of the Negotiable Instrument Act, 1881 (for brevity, 'the Act'). The docket order, dated 04.12.2009, shows that the sworn statement of the de facto complainant was received and the case was taken on file under Section 138 of the Act. The docket thus evidently shows that the sworn statement of the de facto complainant was not recorded. 3. Section 200 Cr.P.C. envisages that before a Magistrate takes cognizance of the offence on complaint, he shall examine the complainant on oath. Thus, examination of the complainant is sine quo non for taking a private complaint on file. Admittedly, the learned Judicial First Class Magistrate did not do so, but, accepted the sworn affidavit of the de facto complainant and had taken the case on file. taking the case on file by the learned Magistrate without recording the sworn statement of the complainant was violative of Section 200 Cr.P.C. and is not sustainable. 4. In that view of the matter, the criminal case is liable to be quashed. Accordingly, this Criminal Petition is allowed. C.C.No.460 of 2009 on the file of the learned II Additional Judicial First Class Magistrate, Ongole against the petitioner herein is quashed on the ground that the sworn statement of the de facto complainant/first petitioner had not been recorded by the trial Court. = NOT TOUCHED THE SCOPE OF THIS SEC.145. Evidence on affidavit. 1[Evidence on affidavit. (1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973, (2 of 1974.) the evidence of the complainant may be given by him on affidavit and may, subject to all just exceptions be read in evidence in any enquiry, trial or other proceeding under the said Code. (2) The Court may, if it thinks fit, and shall, on the application of the prosecution or the accused, summon and examine any person giving evidence on affidavit as to the facts contained therein.] 1. Section 143 to 147 ins. by Act 55 of 2002, sec. 10 (w.e.f. 6-2-2003). = In the opinion of this Court, the said exercise expected to be done by the Magistrate at the stage of Section 200 Cr.P.C, is nothing short of recording evidence by way of sworn statement of the complainant. Section 145 of the Act provides for taking evidence of the complainant not only during trial of the case but also during any enquiry which may include pre-cognizance enquiry or pre-summons enquiry under Section 200 Cr.P.C. This Court finds that Section 145 of the Act is an exception to mode of recording sworn statement of the complainant by the Magistrate at the stage of Section 200 Cr.P.C.