APHC010090352025 IN THE HIGH COURT OF ANDHRA PRADESH (Special Original Jurisdiction) TUESDAY, TWO THOUSAND AND TWENTY THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL REVISION CASE NO: Between: Gudivaka Srinivasa Rao, State Of Andhra Pradesh and Others Counsel for the Petitioner: 1. AVANIJA INUGANTI Counsel for the Respondent(S): 1. PUBLIC PROSECUTOR The court made the following 1. This Criminal Revision Case has been filed aggrieved by the order dated 08.11.2024 passed in C.F.No.12526 of 2024 on the file of the learned I Additional Chief Metropolitan Magistrate, Vijayawada (for short, ‘the Trial Court’) for the offences under Section 138 of NI Act. 2. The Petitioner’s case, in brief, is that in Koduru, Krishna District, while the 2 junior uncle, operates M/s. Pradhyumna Village, Krishna District. Between 05.04.2022 and 03.08.2024, the 2 Respondent borrowed Rs.1,97,24,659.38/ 1 IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI (Special Original Jurisdiction) TUESDAY, THE FOURTH DAY OF MARCH TWO THOUSAND AND TWENTY-FIVE PRESENT THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO CRIMINAL REVISION CASE NO: 263/2025 ...PETITIONER AND State Of Andhra Pradesh and Others ...RESPONDENT(S) Counsel for the Petitioner: Counsel for the Respondent(S): PUBLIC PROSECUTOR The court made the following ORDER AT THE TIME OF ADMISSION: This Criminal Revision Case has been filed aggrieved by the order dated 08.11.2024 passed in C.F.No.12526 of 2024 on the file of the learned I Additional Chief Metropolitan Magistrate, Vijayawada (for short, ‘the Trial e offences under Section 138 of NI Act. ’s case, in brief, is that he operates Aditya Filling Station in Koduru, Krishna District, while the 2nd Respondent, the Petitioner’s paternal M/s. Pradhyumna Petroleum Products in T. Kothapalem Village, Krishna District. Between 05.04.2022 and 03.08.2024, the 2 Respondent borrowed Rs.1,97,24,659.38/- (Rs.1,51,55,844/- as principal and IN THE HIGH COURT OF ANDHRA PRADESH [3369] THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO ...PETITIONER ...RESPONDENT(S) THE TIME OF ADMISSION: This Criminal Revision Case has been filed aggrieved by the order dated 08.11.2024 passed in C.F.No.12526 of 2024 on the file of the learned I Additional Chief Metropolitan Magistrate, Vijayawada (for short, ‘the Trial operates Aditya Filling Station Respondent, the Petitioner’s paternal Petroleum Products in T. Kothapalem Village, Krishna District. Between 05.04.2022 and 03.08.2024, the 2nd as principal and 2 Rs.45,68,815.38/- as interest) from the Petitioner for the construction of a fuel station and other financial purposes. The 2nd Respondent agreed to repay the debt by 27.08.2024 through three cheques of Rs.50,00,000/- each (cheque Nos.732835, 732836, and 732837). However, when the Petitioner presented the cheques on 28.08.2024 at State Bank of India, Prajashakti Nagar, Vijayawada, they were dishonored due to insufficient funds in the 2nd Respondent’s account, as per the dishonor memo issued the same day. The Petitioner issued a notice to the 2nd Respondent on 04.09.2024 by RPAD. Since there was no response, the Petitioner filed a criminal complaint against the 2nd Respondent on 21.10.2024, one month later, in the Trial Court. On 08.11.2024, during the hearing, the Trial Court directed that a notice be issued to the 2nd Respondent, and the matter was postponed for six months without examining the complaint, which was deemed contrary to Section 223 of the BNSS. 3. The learned counsel for the Petitioner submits that the proviso of Section 223(1) mandates that a Magistrate while taking cognizance of an offence on a complaint, shall examine upon oath, the Complainant and the witnesses present and shall reduce that into writing and shall be signed by the Magistrate, Complainant and the witnesses if any present. It is pertinent to note that the Trial Court passed the impugned order without examining the Complainant and the witnesses. He further submits that the Trial Court should have primarily examined the Complainant and the witnesses and then issued a notice per Section 223 of BNSS for the 2nd Respondent to be heard. Hence, he prays the court to set aside the order dated 08.11.2024 passed in C.F.No.12526 of 2024 by the I Additional Chief Metropolitan Magistrate, Vijayawada. 4. The learned Assistant Public Prosecutor appearing for 1st Respondent - State submitted that the procedure prescribed under section 223 of the BNSS Act was followed by the learned Magistrate and supported the impugned order. 3 5. Now, the point for consideration is: Should the Petitioner's request to remand the case to the I Additional Chief Metropolitan Magistrate, Vijayawada, be granted, thereby setting aside the order dated 08.11.2024 passed in C.F. No. 12526 of 2024? 6. The learned counsel for the Revision Petitioner/Complainant submits that when the matter was heard on 08.11.2024, the learned Magistrate issued a notice to the 2nd Respondent without examining the Complainant, in contravention of Section 223 of the BNSS Act. 7. For better appreciation, section 223 of the BNSS Act, which was section 200 of Cr.P.C., reads as follows: 223. Examination of Complainant. (1)A Magistrate having jurisdiction while taking cognizance of an offence on the complaint shall examine upon oath the Complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the Complainant and the witnesses, and also by the Magistrate: Provided that no cognizance of an offence shall be taken by the Magistrate without giving the accused an opportunity of being heard: Provided further that when the complaint is made in writing, the Magistrate need not examine the Complainant and the witnesses- (a) if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or (b) if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 212: Provided also that if the Magistrate makes over the case to another Magistrate under section 212 after examining the Complainant and the witnesses, the latter Magistrate need not re-examine them. (2)A Magistrate shall not take cognizance of a complaint against a public servant for any offence alleged to have been committed in the course of the discharge of his official functions or duties unless-(a) such public servant is given an opportunity to make assertions as to the situation that led to the incident so alleged, and (b) a report containing facts and circumstances of the incident from the officer superior to such public servant is received. 4 8. A three-judge Bench of the Hon’ble Supreme Court in the case of A.C. Narayanan v. State of Maharashtra1, was called upon to answer a reference about the conflicting decisions delivered by two Division Benches of the Hon’ble Supreme Court in M.M.T.C. Ltd. and Another V. Medchl Chemicals & Pharma P. Limited and Another2 and Janki Vashdeo Bhojwani and Another V. IndusInd Bank Limited and Others 3. While answering the reference, what fell for consideration before this court was the maintainability of a complaint Under Section 138 of the NI Act filed by the power of attorney holder on behalf of the original Complainant and the necessity of specific averments as to the knowledge of the power of attorney holder with respect to the facts and circumstances leading to the dishonour of the cheque(s) and the preference of the criminal proceedings. This court held as follows: 29. From a conjoint reading of Sections 138, 142 and 145 of the NI Act as well as Section 200 of the Code, it is clear that it is open to the Magistrate to issue process on the basis of the contents of the complaint, documents in support thereof and the affidavit submitted by the Complainant in support of the complaint. Once the Complainant files an affidavit in support of the complaint before issuance of the process Under Section 200 of the Code, it is thereafter open to the Magistrate, if he thinks fit, to call upon the Complainant to remain present and to examine him as to the facts contained in the affidavit submitted by the Complainant in support of his complaint. However, it is a matter of discretion, and the Magistrate is not bound to call upon the Complainant to remain present before the court and to examine him upon oath for deciding whether or not to issue process on the complaint Under Section 138 of the NI Act. For the purpose of issuing process Under Section 200 of the Code, it is open to the Magistrate to rely upon the verification in the form of the affidavit filed by the Complainant in support of the complaint Under Section 138 of the NI Act. It is only if and where the Magistrate, after considering the complaint Under Section 138 of the NI Act, documents produced in support thereof and the verification in the form of affidavit of the Complainant, is of the view that examination of the Complainant or his witness(s) is required, the Magistrate may call upon the Complainant to remain present before the court and examine the Complainant and/or his witness upon oath for deciding whether or not to issue process on the complaint Under Section 138 of the NI Act. 1 MANU/SC/0934/2013 2 MANU/SC/0728/2001 3 MANU/SC/1030/2004 5 9. After discussing the discretionary powers of the Magistrate, the Hon'ble Apex Court concluded that it is within the Magistrate's discretion to require the Complainant to remain present and to examine him regarding the facts contained in the affidavit submitted in support of the complaint. It is only when, after considering all relevant documents, the Magistrate is of the view that the examination of the Complainant or his witnesses is necessary, that the Magistrate may call upon the Complainant to appear before the court and examine the Complainant on oath to determine whether or not to issue process on the complaint under Section 138 of the Negotiable Instruments Act. 10. The learned counsel for the Petitioner relies on the order passed by the High Court of Karnataka in Criminal Petition No.7526 of 2024, dated 27.09.2024. However, a careful reading of the cited decision reveals that it does not apply to the present case, as in the said matter, the sworn affidavit of the Complainant was not filed, and his statement was not recorded on oath. 11. The impugned proceedings, along with the order passed by the Trial Court in issuing the notice to the 2nd Respondent, demonstrate that the Complainant filed a sworn affidavit. Upon being satisfied with the material on record, the Trial Court appropriately ordered notice to the 2nd Respondent. Therefore, it cannot be argued by the Petitioner/Complainant that the Trial Court failed to follow due procedure by not recording the Complainant's statement on oath. 12. In light of the observations made in the A.C. Narayanan case, cited supra, the contention raised by the counsel for the Petitioner / Complainant cannot be accepted. 13. Given the discussions above and findings and considering the entire facts and circumstances of this case, this court is of the considered view that the learned Magistrate has ordered notice to the 2nd Respondent after considering the material placed on record, including a sworn affidavit of the 6 Petitioner / Complainant. The impugned order is not perversive or illegal, and no interference is warranted. The Criminal Revision Case, therefore, deserves dismissal. 14. Accordingly, the Criminal Revision Case is dismissed. As a sequel thereto, the miscellaneous applications, if any, pending in this Criminal Revision Case shall stand closed. _______________________ T. MALLIKARJUNA RAO, J 04.03.2025 S A K 7 THE HONOURABLE SRI JUSTICE T MALLIKARJUNA RAO Criminal Revision Case No.263 of 2025 Dated: 04.03.2025 S A K