ORDER
1. This petition is filed by the accused in C.C. 258/93 on the file of the Additional Chief Judicial Magistrate, Bangalore District, Bangalore, for setting aside the order dated 5-4-93 issuing process against the petitioner and for quashing the entire proceedings.
2. The respondent has filed the complaint in the lower court for an offence under Section 138 of the Negotiable Instruments Act (‘the Act’ for short) alleging that the petitioner had issued a cheque in respect of his earlier liability, that the cheque when presented for encashment was returned with an endorsement that the funds were insufficient and that though a notice of demand was issued to the petitioner he has not paid the amount and that as such he has committed the offence under Section 138 of the Act. The Magistrate after recording the sworn statement of the complainant and marking certain documents has order issued of summons to the petitioner. This order of the Magistrate is challenged by the petitioner on various grounds. The first grounds urged by the learned counsel for the petitioner is that the Magistrate has not at all taken cognizance of the offence and that as such the entire proceedings are vitiated. He relied on the decision in G. A. Purushotam v. E.S.I. Corporation, . He further pointed out that in the present case when the complaint was filed on 15-3-93 the Magistrate has simply posted the case to next day and that on 5-4-93 the Magistrate has recorded the sworn statement of the complainant and has straightway issued the process without actually taking cognizance of the offence.
3. In Devarapalli Laxminarayana v. Narayana, the Supreme Court has made it clear that the expression ‘taking cognizance of an offence’ means that the Magistrate should apply his mind for the purpose of proceeding under Section 200 and that if he has done so, then he is said to have taken cognizance of the offence and that instead of proceeding under Chapter IX he uses his discretion and takes actions of some other kind such as issuing search warrant for purpose of investigation or ordering investigation by police under Section 153, then he cannot be said to have taken cognizance of the offence. The same principle has been applied in G. A. Purushotham’s case. That was a case where the complaint was by a public servant and as such there was no occasion for the Magistrate to record sworn statement. The order for issue of summons had been passed in a typed pro forma scoring off the portion which was not applicable. It is under those circumstances this Court held that there is nothing to indicate that the Magistrate had applied his mind and has taken cognizance of the offences.
4. It is well settled that it is not necessary for the Magistrate to specifically state that he is taking cognizance of the offence as laid down by the Supreme Court in the above decision, if he takes steps as provided under Section 200 then it necessarily means that he has taken cognizance of the offence. This factor is made clear in another decision of this Court reported in Abdul Khadar Mohammad Gous Attigari v. State, . In the present case it is seen that on 5-4-93, to which date the case had been posted, the Magistrate has proceeded to record sworn statement of the complainant. He has also marked certain exhibits produced by the complainant. The very act of the Magistrate in recording sworn statement of the complainant would indicate that he has taken cognizance of the offence. As such the contention that the Magistrate has not at all taken cognizance of the offence cannot be accepted.
5. Another ground urged by the learned Counsel for the petitioner is that the Magistrate instead of examining the complainant himself has allowed him to be examined by the advocate and that this is illegal. It is seen that in the sworn statement we find the following portion typed, “examination-in-chief of Senior APP”. It is nobody’s case that the Senior APP is appearing for the complainant. There was no reason for the Senior APP to examine the complainant. It is obvious that the typist who typed the sworn statement has made use of the deposition form wherein for the purpose of convenience that portion regarding examination-in-Chief Senior APP had already been typed. There is no substance in the contention that the Magistrate has not examined the complainant in this case.
6. It was next contended by the learned Counsel for the petitioner that before issuing process under Section 204, the Magistrate is required to apply his mind to the facts of the case, that he should form an opinion that there are grounds for issuing process in the case, that the Magistrate is required to at least record his opinion in this regard and that in the present case except stating “issue summons to the accused” the Magistrate has nowhere indicated that he had applied his mind to the facts of the case or that he had formed an opinion that there are sufficient grounds for proceeding in the matter. He cited some decisions in support of his contention that the Magistrate should apply his mind to the facts of the case before ordering issue of process. There cannot be any dispute with the proposition of law that the Magistrate, before ordering issue of process, should apply his mind to the facts of the case and then, if he is of the opinion that there are sufficient grounds to proceed with the case should order issue of process. But it is not always necessary for the Magistrate to specifically sated that he has considered the material placed on record and than he has formed an opinion that there are grounds for further proceeding in the case. In the present case the Magistrate has clearly recorded that he has perused the records the thereafter he has ordered issued of summons. In the circumstances it can be inferred that the Magistrate who had that day itself recorded the sworn statement of the complainant and marked the documents produced in the case, has taken into consideration the material placed before him and has then passed the order issuing summons to the petitioner. The fact that the Magistrate has not specifically stated in his order that the summons are issued for the offence under Section 138 of the Act does not render the order invalid. The complaint had been filed only for the offence under Section 138 of the Act. The sworn statement as well as the documents marked in the case are in respect of only that offence. The summons issued in pursuance of that order shows that the petitioner was required to answer the charge under Section 138 of the Act. This clearly shows that the order passed by the Magistrate issuing summons was in respect of only that offence. If the facts of the case were such that the allegations in the complaint and the sworn statement did not disclose the offence alleged then that could have been a ground to infer that the Magistrate has not applied his mind to the facts of the case. But in the instant case it cannot be said that the allegations in the complaint and the sworn statement of the complainant and the documents produced by him did not disclose the offence under Section 138 of the Act. As such there is no basis to hold that the Magistrate has passed the order without applying his mind to the facts of the case.
7. It was lastly contended that to constitute the offence under Section 138 of the Act the notice of demand issued after the dishonour of the cheque should be served on the accused that, in this case there is no allegation in the complaint or in the sworn statement that the notice was served on the petitioner and as such it cannot be said that the offence under Section 138 is committed. But it is seen that in the complaint it is specifically alleged that the complainant got a notice of demand issued to the petitioner both by registered post acknowledgment due, as well as by certificate of posting, that though the registered post acknowledgment was received back by the complainant, the accused was definitely in receipt of notice sent through certificate of posting. As such it cannot be said that there is no allegation that the accused has received notice sent by the complainant. It is not necessary to go into the question at this stage as to whether the complainant should positively establish that the notice was served on the accused. Whether the service of notice personally on the accused should be established in a case of this type by the complainant or whether an inference of service could be drawn under certain circumstances is a matter which the trial Court will consider at the time of the trial.
8. After considering the grounds urged on behalf of the petitioner, I find that there are no good grounds to either set aside the order issuing process to the petitioner or to quash the proceedings against the petitioner.
9. For the above reasons this petition is dismissed.
10. Petition dismissed.