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TMI Blog2005 (9) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... e Bank, Seshadripuram Branch in favour of the complainant towards the discharge of the whole debt. As the said cheque was dishonoured for insufficient funds as per the bank endorsement after issuing mandatory notice dated 25-3-1998 the complainant launched the prosecution when the accused failed to pay the amount under the cheque. 3. The respondent/accused appeared and contested the matter. The defence of the accused was there was a sale transaction pertaining to the landed property between the complainant and one Krishnamurthy and the said deal got frustrated. Therefore, this cheque came to be issued as a security as the said sale transaction of the land was entered into between the complainant and the said Krishnamurthy at the instance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said provision is either imprisonment or by way of fine. The fine could be double the amount under the cheque. 6. This does not mean the creditor or the person to whom such cheque is given by the accused either towards the debt or liability foregoes his right to recover the said money in a Civil Court. The conviction under Section 138 of the Negotiable Instruments Act need not be fine alone but it could even be imprisonment. In that situation for the offence committed by the accused, he would be punished but so far as the loss caused to the complainant, he has no remedy. Therefore, mere launching of prosecution or even obtaining conviction under S. 138 against the accused does not prevent the complainant from approaching the Civil C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d put up for sworn statement by 1-3-97. However, this does not contain the signature of the Officer on 6-1-97. But the original complaint which was presented before the Court in person by the complaint contains endorsement with the signature of the Officer which reads as under: The complainant present, cognizance taken, register the case and put up for statement by 1-3-97. On 1-3-97 the case was called and the complainant was present but sworn statement was not recorded, the matter was adjourned to 5-4-97. On 5-4-97 the order sheet reads as under: The complainant present cognizance taken, sworn statement recorded, arguments heard, for orders by 19-4-97. 9. It is well settled now that mere presentation of the case un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ke cognizance, it would return the complaint to the complainant. In order to issue summons to the accused under Section 156(3) of Cr.P.C., it can form such opinion after recording sworn statement. Depending on its opinion further action would be taken. Therefore, unless cognizance is taken, question of recording sworn statement would not arise. 11. As already stated above taking cognizance would only mean proper application of mind of the Court to the facts pertaining to the offence complained of against the accused. The very order on 6-1-97 which was again repeated on 5-4-97 just before recording the sworn statement would only mean the Court did not apply its mind on 6-1-97. Otherwise there was no necessity for the Court to say once aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h cognizance can be taken are set out in Clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint the Magistrate applies his mind for the purposes of proceeding under Section 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of Section 190(1)(a). If instead of proceeding under Chapter XV he has in the judicial exercise of his discretion, taken action of some ot ..... X X X X Extracts X X X X X X X X Extracts X X X X
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