9911796707
TMI Blog2005 (8) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... without taking cognizance of the offence, and since taking of cognizance was a condition precedent, the issuance of process was bad. The correctness of this order is challenged before us. It is not in dispute that four cheques were issued by respondent No.2, the Managing Director of the respondent No.1 Company for the total amount of rupees five crores. The payments were made by respondent No.2 on behalf of the respondent No.1 company of which he was a Director. The cheques were dishonoured since the respondent No.2 stopped payment of those cheques. The appellant filed a complaint before the 14th Additional Chief Metropolitan Magistrate, Bangalore who on 19.4.2000, the date of filing of the complaint itself, directed the matter to be put u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecording of sworn statement in respect of P.C.R. like this. The Magistrate did not take cognizance before proceeding to sworn statement and after recording the sworn statement going through the documents he has formed an opinion that it is a case to proceed against the petitioners and accordingly issued summons. The same has been assailed in this petition on various grounds. Since taking of cognizance is a condition precedent as noted above, without entering into the merits of the case on various grounds raised by the petitioners in this petition, it would be appropriate to quash the order of issuance of summons and to remit back the matter to the Magistrate to proceed from the stage of taking cognizance in accordance with law and it is lef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the Magistrate need not in express words record the fact that he has taken cognizance, but the record must show that he had applied his mind to the contents of the complaint before proceeding further in the matter. He supported the view of the High Court and submitted that even if it be held that cognizance was taken, this Court must hold that cognizance was taken improperly, without application of mind. In Ajit Kumar Palit vs. State of West Bengal, (1963) Supp. 1 SCR 953, this Court observed :- "The word "cognizance" has no esoteric or mystic significance in criminal law or procedure. It merely means - -- become aware of and when used with reference to a Court or Judge, to take notice of judicially. It was stated in Gopal Marwari v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to reject the complaint at that stage, and proceeds further in the matter, it must be held to have taken cognizance of the offence. One should not confuse taking of cognizance with issuance of process. Cognizance is taken at the initial stage when the Magistrate peruses the complaint with a view to ascertain whether the commission of any offence is disclosed. The issuance of process is at a later stage when after considering the material placed before it, the Court decides to proceed against the offenders against whom a prima facie case is made out. It is possible that a complaint may be filed against several persons, but the Magistrate may choose to issue process only against some of the accused. It may also be that after taking cognizanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. According to him, there was no case made out for issuance of process. He submitted that the debtor was the company itself and the respondent No.2 had issued the cheques on behalf of the Company. He had subsequently stopped payment of those cheques. He, therefore, submitted that the liability not being the personal liability of respondent No.2, he could not be prosecuted, and the Magistrate had erroneously issued process against him. We find no merit in the submission. At this stage, we do not wish to express any considered opinion on the argument advanced by him, but we are satisfied that so far as taking of cognizance is concerned, in the facts and circumstances of this case, it has been taken properly after application of mind. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
