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2022 (11) TMI 142 - HC - Indian LawsDishonor of Cheque - 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 - HELD THAT - 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 VERSUS N.G. BHAT CHITRIGI AND ORS. 2005 (12) TMI 602 - KARNATAKA HIGH COURT , 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. 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 - 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. Petition dismissed.
Issues:
Petition filed under Section 482 of Cr.P.C. to quash order of taking cognizance for offence under Section 138 of N.I. Act. Analysis: 1. The petitioner challenged the order of cognizance taken against them for an offence under Section 138 of N.I. Act. The petitioner argued that the magistrate posted the matter for recording sworn statement before taking cognizance, which is against the law. Citing the judgment in the case of State By A. Mahadeva vs. Papireddy, the petitioner contended that the magistrate should have first taken cognizance before recording sworn statements of witnesses. 2. The respondent's counsel argued that there is no legal bar for the magistrate to take cognizance for the second time. Referring to the judgment in the case of V.S. Joshi and Another vs. N.G.Bhat Chitrigi, the respondent contended that the magistrate had applied his mind and taken cognizance before recording sworn statements. The respondent emphasized that the order of issuing process cannot be set aside on technical grounds. 3. The court examined the precedents cited by both parties. Referring to the judgment of the Hon'ble Supreme Court in GOPAL DAS SINDHI AND OTHERS v. STATE OF ASSAM AND ANOTHER, the court reiterated that the magistrate must take cognizance before proceeding under Section 200 Cr.P.C. The court also considered the judgment in the case of V.S. Joshi, where it was held that the magistrate's cognizance can be inferred from the material on record, and the absence of specific mention of cognizance in the order does not invalidate the process. 4. Upon reviewing the magistrate's order, the court found that cognizance was indeed taken before posting the matter for recording statements. The court noted that the complaint and sworn statement were filed together, leading to the magistrate's cognizance and subsequent issuance of process. The court concluded that there was no illegality in the magistrate's actions and dismissed the petition. 5. The court further stated that the magistrate's actions were in line with legal principles, emphasizing that the magistrate's cognizance can be inferred from the facts and material on record. The court found no merit in the petitioner's arguments and dismissed the petition, along with any pending applications. This detailed analysis of the judgment highlights the legal arguments presented by both parties, the court's examination of relevant precedents, and the ultimate decision reached by the court in dismissing the petition.
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