IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 9TH MARCH 2011 / 18TH PHALGUNA 1932 Crl.Rev.Pet.No. 537 of 2011() ---------------------------------- MP.5332/2007 of JUDL.MAGISTRATE OF FIRST CLASS, PERUMBAVOOR .................... REVN. PETITIONER(S): COMPLAINANT --------------------------------------------- SHYAMKUMAR, PROPRIETOR, LOCOTIYA COMPUTER CENTRE, KALADY. BY ADVS. SRI.K.M.VARGHESE SRI.SHAHUL HAMEED MOOPPAN RESPONDENT(S): STATE & ACCUSED ------------------------------------------- 1. STATE OF KERALA, REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. 2. K.K.SURESH, CHITHRAMOOLA VEEDU, CHENGAL, KALADY-683 574. 3. RINI SURESH, CHITHRAMOOLA VEEDU, CHENGAL, KALADY-683 574. R1 BY PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 09/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN,J. ---------------------------------------------------------- Crl.R.P.No. 537 of 2011 --------------------------------------------------------- Dated this the 9th day of March,2011 O R D E R The complainant in a private complaint is the revision petitioner as he is aggrieved by the order dated 27.10.2010 in M.P.No.5332 of 2007 by which the learned Magistrate of the Judicial First Class Magistrate Court-I, Perumbavoor dismissed his complaint under Section 203 of Cr.P.C. 2. I have heard Sri.K.M.Varghese, learned counsel appearing for the revision petitioner and I have gone through the order impugned. 3. The case of the complainant is that he is conducting a bakery at Kalady and also conducting a computer centre. According to him, the accused persons are his relatives. The first accused is the husband of the second accused/wife, who is conducting an institution in the name and style as 'Chamber of Puranic Arts'. According to the complainant, he is fully engaged in the bakery and the first accused Crl.R.PNO.537 of 2011 :-2-: used to visit the computer centre and the first accused was entrusted with the computer centre of the complainant and he used to keep signed blank cheques in the said computer institution. It is the further case of the complainant that without the consent and knowledge of the complainant, the first accused, with ulterior motive and in conspiracy with second accused, had taken away blank cheque leaf and filled the same with the figure of Rs.7 lakhs and thereafter, the same was filled up in the name of the institution of the second accused, forging the signature of the complainant. According to the complainant, when he got information regarding the presentation of the cheque for collection on 28.10.2005, he preferred a complaint before the same court. The said complaint was sent for investigation under Section 156(3) of the Cr.P.C. and accordingly, Crime No.596 of 2005 was registered. According to the complainant, the police referred the above crime as false without conducting a proper investigation and therefore, he approached the learned Magistrate by preferring the present Crl.R.PNO.537 of 2011 :-3-: complaint. Section 202 enquiry was conducted in which the complainant and one witness were examined. It is the above complaint, dismissed under Section 203 of Cr.P.C. against which the present revision petition is preferred. 4. Learned counsel for the complainant vehemently submitted that the learned Magistrate, in order to dismiss the complaint, had considered extraneous facts including the fact with respect to the pendency of another case in the very same court in which the complainant is an accused. According to the learned counsel, the said approach of the learned Magistrate is without any authority or jurisdiction. It is the further case of the learned counsel that going by the complaint and the sworn statement of the complainant as well as his witnesses, a prima facie case is made out, but the learned Magistrate erroneously came to a conclusion that the complaint is devoid of merit. 5. I have carefully considered the arguments advanced by the Crl.R.PNO.537 of 2011 :-4-: learned counsel for the revision petitioner and I have also perused the order impugned. Going by the impugned order, it can be seen that the learned Magistrate has considered the entire allegation contained in the complaint and also the sworn statement of the revision petitioner/complainant and his witnesses. As indicated earlier, the present complaint is preferred before the trial court as part of the second round litigation since the earlier complaint filed by him and the crime registered thereon were referred as false after investigation conducted by the Police. In the impugned order, the learned Magistrate reiterated the conclusions arrived on by the investigating agency after the investigation undertaken by them. The learned Magistrate assigned numerous reasons, in order to arrive at his conclusion that no ground is made out to proceed with further. From the order, it appears that the present complaint is filed belatedly, i.e.on 23.10.2007, though the Police filed a refer report during the month of January, 2006 and though the complainant received the refer notice on Crl.R.PNO.537 of 2011 :-5-: 11.2.2006. It is also discernible from the order that the present complaint was filed when the complainant came to know regarding the dishonour of cheque which is presented by the complainant in the other case. The learned Magistrate has also made observation regarding the improvement made in the latest complaint with respect to the allegation that contained in the earlier complaint which was forwarded to the Police for investigation. It is also the finding of the learned Magistrate that no timely action was taken by the complainant at the time of alleged loss of cheque. Thus, going by the reasons assigned by the court below, it can be seen that the learned Magistrate, after perusal of the complaint and the sworn statement of the complaint as well as his witnesses and on application of mind, came to a conclusion that no ground is made out to proceed further and such exercise is within the realm of the learned Magistrate who dealt with the complaint under Chapter XV of the Cr.P.C. 6. Learned counsel for the revision petitioner submitted that the Crl.R.PNO.537 of 2011 :-6-: observation of the learned Magistrate, that contained in the impugned order with respect to C.C.No.1581 of 2009 in respect of the very same cheque, is likely to adversely affect the defence of the complainant in that case. I find some force in the above submission. In paragraph 11 of the order, it is stated as follows:- “The allegation in MP 3680/05 was that a signed cheque leaf No.37155 was lost but in MP 5338/07 the allegations are further improved and it will also show that even though the complainant got information that one of his cheques was allegedly stolen on 28.10.05, he took time till 23.10.07 to say that his other cheques were also stolen away. his further case is that unsigned cheque leaves were stolen away. So my view is that the present conduct of the complainant by filing these two complaints before this Court is, as a measure to take a strong defence in the case u/s.138 of the N.I.Act which was filed against him. Therefore, my view is that the complainant has suppressed material facts and it is only an after thought.” Learned counsel also invited my attention to second line of paragraph 10 also. 7. According to me, the above observation of the learned Magistrate, though it was made as part of the appreciation of the allegations and the materials in the present case, such observation shall not be taken into consideration at the time of disposal of Crl.R.PNO.537 of 2011 :-7-: C.C.No.1581 of 2009 and the learned Magistrate is further directed that while disposing of the above case, the same shall be disposed of in accordance with law and procedure untrammeled by the observation contained in paragraphs 10 and 11 of the order impugned in this Crl.R.P. With the above observation, this Criminal Revision Petition is dismissed. V.K.MOHANAN, Judge. MBS/ Crl.R.PNO.537 of 2011 :-8-: