TMI Blog2005 (8) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... tition No.4469/2002. The appellant is the complainant, and he is aggrieved by the order passed by the High Court whereby the High Court remitted the matter to the Magistrate on a finding that the Magistrate had issued process against the respondents 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 sinc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by applying his mind to proceed with the complaint by taking cognizance nor in the order sheet produced. It is mandatory that the word taking cognizance necessarily requires application of mind by perusing the complaint and taking of cognizance precedes recording 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 v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atter, itself amounts to taking cognizance of the offence. The High Court was clearly wrong in holding that the Magistrate had proceeded in the matter without taking cognizance. Learned counsel appearing on behalf of the respondents submitted that it may be that 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 C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at date, in our view that would make no difference. The cognizance is taken of the offence and not of the offender and, therefore, once the Court on perusal of the complaint is satisfied that the complaint discloses the commission of an offence and there is no reason 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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gistrate had not taken cognizance, and that being a condition precedent, issuance of process was illegal. Counsel for the respondents submitted that the cognizance even if taken was improperly taken because the Magistrate had not applied his mind to the facts of the 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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