TMI Blog2004 (1) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... e material facts giving rise to this revision may, in brief, be set out as follows: (i) A written complaint was filed, on 11.10.1993, in the Court of learned Judicial Magistrate, 1st Class, Dibrugarh, by the complainant-Petitioner, his case being, in brief, thus: The accused-opposite party took a loan of Rs. 40,000/- from the complainant-Petitioner on the strength of a hand-note (promissory note) executed by the accused-opposite party. When the complainant demanded repayment of the said loan amount, the accused issued a cheque for the said amount on 10.04.1993. The said cheque, on being presented by the complainant, was dishonoured by the bank concerned, on 10.04.1993, with the remark, Insufficient fund . The complainant accordingly informed the accused about the cheque having been dishonoured by the bank. The accused advised the complainant to present the cheque during the last part of September, 1993; but when the cheque was so presented, the bank refused to honour the cheque with the remark,. Insufficient Balance. The complainant, then, issued a notice in terms of Section 138 of the NI Act and the notice was served on the accused on 29.09.93. As even after receipt of the n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not amount to taking of cognizance. The expression taking of cognizance of an offence , as envisaged by Section 190 Code of Criminal Procedure read with Section 200 Code of Criminal Procedure, would mean that the Magistrate has applied his mind to the facts contained in the complaint for the purpose of determining if there is a prima facie case to proceed against the accused. Taking cognizance would mean the action taken by the Court for initiating judicial proceedings against the person, who is alleged to have committed the offence. Before it can be said that a Magistrate or Court has taken cognizance of an offence, it must be shown that the Magistrate has applied his mind to the facts for the purpose of proceeding further in the matter at the instance of the complaint. Mere presentation of a complaint in the court does not mean that its cognizance has been taken by the Magistrate unless the record shows that he has applied his mind as indicated hereinbefore. What taking cognizance of offence mean and convey, has been explained by the Apex Court in Narsingh Das Tapadia v. Goverdan Das Partani and Anr. AIR 2000 SC 2946, wherein drawing a distinction between the filing of a comp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant and his witnesses and the result of the investigation, if any, under Section 202, there is in his judgment 'no sufficient ground for proceeding'. 10. Mere presentation of the complaint in the Court cannot be held to mean, that its cognizance had been taken by the Magistrate. If the complaint is found to be premature, it can await maturity or be returned to the complainant for filing later and its mere presentation at an earlier date need not necessarily render the complaint liable to be dismissed or confer any right upon the accused to absolve himself from the criminal liability for the offence committed. Again this Court in D. Lakshminarayana Reddy v. V. Narayana Reddy AIR 1976 SC1672 : (1976 Cri LJ 1361) dealt with the issue and observed (Para 4): What is meant by 'taking cognizance of an offence' by the Magistrate within the contemplation of Section 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of Section 190 and the caption of chapter XIV under which Sections 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judicial Magistrate kept the said complaint vide order, dated 11/10/1993, fixed for recording of statement of the complainant under Section 200 Code of Criminal Procedure on 18.10.1993, and, on the prayer o f the complainant, the learned Magistrate vide order, dated 18.10.1993, fixed the said complaint for recording of the statement under Section 200 Code of Criminal Procedure on 09.11.1993 and it was on 09.11.1993 that the complainant was examined on oath, his statement was recorded and on finding that a prima facie case had been made out against the accused under Section 420 IPC and Section 138 of the N.I. Act, summons was directed to be issued. 9. From the bare reading of the orders, dated 11.10.93, 18.10.93 and 09.11.1993 aforementioned, it is abundantly clear that on 11.10.93, i.e., the date, when the complaint was presented in the Court, the learned Magistrate did not apply his mind to the facts presented in the complaint and it was only on 09.11.1993 that the learned Judicial Magistrate applied mind to the contents of the complaint and the statement of the complainant recorded under Section 200 Code of Criminal Procedure in order to ascertain if any prima facie case had ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
