IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 17TH MARCH 2009 / 26TH PHALGUNA 1930 CRL.REV.PET.NO. 627 OF 2001() ----------------------------- {C.C.NO.260/2000 OF CHIEF JUDICIAL MAGISTRATE COURT, MANJERI} .................... REVN. PETITIONER(S)/COMPLAINANT: ------------------------------------------- M.K.ABOOBACKER, S/O.MOHAMMEDALI, KARUVAMBRAM POST, MANJERI. BY ADV. SRI.K.M.SATHYANATHA MENON RESPONDENT(S)/ACCUSED & STATE : ------------------------------------------- 1. MECHERI ALAVI ALIAS KUNHAPPU, S/O. AHAMMED, P.O.IRUMBUZHI, VADAKKUMMURI. 2. STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 BY ADV.SRI.BABU S. NAIR R2 BY PUBLIC PROSECUTOR SMT.M.K.PUSHPALATHA THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 17/03/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.GIRI, J. ------------------------- CRL.R.P.No.627 of 2001 ------------------------- Dated this the 17th day of March, 2009. O R D E R The complainant in C.C.No.260/00 on the file of the Chief Judicial Magistrate, Kottayam, is the petitioner herein. 2. The complaint was originally filed under Section 142 of the Negotiable Instruments Act, 1881 {for short 'the Act'}, alleging that the cheque issued by the accused in discharge of a liability was dishonoured due to insufficiency of funds and that therefore, the accused has committed the offence under Section 138 of the Act. 3. Finding that no notice was served on the accused, the court below declined to take cognizance of the offence under Section 138 of the Act, but nevertheless took cognizance under Section 420 of the Indian Penal Code. It is now stated, across the Bar, that the complainant had preferred a revision against the order of the trial court declining to take cognizance of CRL.R.P.No.627 of 2001 :: 2 :: the offence under Section 138 of the Act, before the concerned Sessions Court. The details of the same are not available. Therefore, I do not propose to express any opinion as regards the said contention or on the said aspect. 4. After having taken cognizance of the offence under Section 420 of the Indian Penal Code, the case was taken on file, though originally it was transferred to the register of long pending cases, after the accused had surrendered, it was again refiled. The accused then prayed for a discharge under Section 245(2) of the Code of Criminal Procedure. The court below accepted the plea of the accused and discharged the accused under Section 245(2) of the Cr.P.C. The present revision has been filed in challenge of the same. 5. I have considered the order passed by the court below and I heard learned counsel on both sides. 6. The court below took note of the fact that the complainant did not have a case that he was induced to CRL.R.P.No.627 of 2001 :: 3 :: deliver any property and hence, a cheque was issued. In other words, the necessary ingredients of Section 415 Indian Penal Code were not made out. I am of the view that the court below is correct in its decision. I have perused a copy of the complaint made available by the complainant's counsel. Apart from mentioning Section 420 of the Indian Penal Code, the complainant had only stated that the accused had issued a cheque in discharge of a liability, but the same was dishonoured. The complaint was preferred only under Section 142 of the Act. No purpose would be served by proceeding with the complaint for the offence under Section 420 IPC. The court below was, therefore, correct in discharging the accused under Section 245(2) of the Cr.P.C. The revision petition is, therefore, bereft of merit and is dismissed. But, I make it clear that the discharge of the accused in relation to the offence under Section 420 IPC will not stand in the way of the complainant prosecuting a remedy against the order CRL.R.P.No.627 of 2001 :: 4 :: passed by the trial court declining to take cognizance of the offence under Section 138 of the Act, if such remedy has been already availed of. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. to Judge