Gopal vs Suresh Kumar Triwedi

R.S. Chauhan, J.—The Petitioner has challenged the order dated 03.11.2009, passed by the Additional Chief Judicial Magistrate, Lalsot, District Dausa whereby the learned Magistrate dismissed the application dated 26.10.2009 filed by the Petitioner for recalling the cognizance order dated 31.01.2009.

The only contention raised before this Court by Mr. Nawal Singh Sikarwar, the learned Counsel for the Petitioner, is that the learned trial court had taken cognizance without recording the statement of the complainant u/s 200 Code of Criminal Procedure.

However, this contention is highly misplaced. For, Section 142 of N.I. Act, begins with a non-obstante clause, namely "Notwithstanding anything contained in the Code of Criminal Procedure, 1973". Thus, Section 142 of the Act, which is part of specific law, ousts the applicability of the Code while taking cognizance for an offence. Section 142 of the Act clearly lays down the elements which should be considered by the trial court while taking cognizance. Section 142 of the Act does not require that the statement of the complainant should be recorded. In case, the complaint, which is in writing, discloses that prima facie an offence u/s 138 of the Act has been committed by the accused-Petitioner, the learned trial court would be justified in taking cognizance. Since the procedure established by Section 142 of the Act has been followed by the trial court, there is neither any perversity, nor any illegality in the order dated 03.11.2009.

Hence, this petition is devoid of any merit. It is, hereby, dismissed. Consequently, the stay petition also stands dismissed.