IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN WEDNESDAY, THE 29TH JUNE 2011 / 8TH ASHADHA 1933 Crl.Rev.Pet.No. 2959 of 2005() ------------------------------ CC.475/2002 of CHIEF JUDICIAL MAGISTRATE, KASARAGOD .................... REVN. PETITIONER: --------------------- HASSAINAR, S/O.ABDULKHADER, PULIKOOR HOUSE, POST SHIRIBAGILU, KASARAGOD. BY ADV. SRI.T.B.SHAJIMON RESPONDENT(S): --------------- 1. SUNITHE, S/O.MOHAMED HAJI, PATLA, PATLA VILLAGE & POST, KASARAGOD T.K. 2. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA. R2 BY P.P. SRI V. TEK CHAND. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 29/06/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: APPENDIX (CRLRP 2959/05. ANNEXURE A: TRUE COPY OF THE JUDGMENT AND ORDER IN C.C.NO.475/2002 DATED 24.9.2005 ON THE FILE OF THE CHIEF JUDICIAL MAGISTRATE COURT, KASARAGOD. //TRUE COPY// V.K.MOHANAN, J. --------------------------------------------- Crl.R.P.No. 2959 of 2005 --------------------------------------------- Dated this the 29th day of June, 2011 O R D E R The complainant, in a private complaint for the offence under section 138 of the N.I.Act and under section 420 IPC, is the revision petitioner, as he is aggrieved by the order dated 24.9.2005 of the court of the Chief Judicial Magistrate, Kasaragod in C.C.No.475 of 2002 by which the learned Magistrate discharged the sole accused therein, who is a lady. 2. Heard the counsel for the petitioner as well as the learned Public Prosecutor. 3.Though notice was served on the Ist respondent/accused, she has not chosen to defend the Crl.R.P. 4. During the hearing of the Crl.R.P., the learned counsel made available to me a copy of the complaint wherein the allegation is that the accused borrowed a sum of Rs.70,000/- from the complainant as a hand loan Crl.R.PNO.2959 of 2005 :-2-: and towards the discharge of the said liability, the accused issued a cheque bearing No.812289 of State Bank of India, Kasaragod branch dated 16.9.2002 for the said amount. The Further allegation is that when the above cheque was presented for encashment, the said cheque was returned unpaid stating the reason: “Account closed by the bank due to nil balance on 19.3.1999”. Thus according to the complainant, the Ist respondent/accused therein has committed the offenece punishable under section 138 of the N.I.Act and Section 420 of IPC. 5. From the order impugned, it appears that cognizance was taken and instituted C.C.No.475/2002 and in the impugned order, the Section of offence noted is under section 420 IPC. From the impugned order there is nothing to infer that cognizance was also taken for the offence under section 138 of the NI Act. It is further clear that on the date of the consideration of the matter, the date fixed for hearing, the complainant had not appeared. Consequently, by assigning Crl.R.PNO.2959 of 2005 :-3-: the reasons in the impugned order, the learned Magistrate discharged the accused under section 249 IPC. It is the above order challenged in this Crl.R.P.. 6. The leaned counsel for the revision petitioner submitted that the procedure adopted by the learned Magistrate for discharging the accused under section 249 is illegal improper and irregular. According to the learned counsel, the offence under section 138 of the NI Act is the summons case and therefore, no order can be passed under section 249 Cr.P.C. 7. I am unable to accept the above contention, mainly because the offence noted in the order is under section 420 IPC. There is no other arguments or there is any material to show that the court has already taken cognizance for the offence under section 138 of the NI Act. Even as per the allegation of the complainant, the cheque in question was pertained to a closed account and therefore probably, it was of the opinion of the counter parties concerned that offence Crl.R.PNO.2959 of 2005 :-4-: disclosed be under section 420 IPC. According to me, even if cognizance was taken for the offence under section 138 as well, there is nothing illegal or irregular in discharging the accused by invoking section 249 IPC since offence under section 420 IPC and the complainant was absent on the date fixed for the hearing of the matter. In this juncture it is also pertinent to note that while issuing the impugned order, the learned Chief Judicial Magistrate has observed that “it appearing that the alleged offence is one which may be lawfully compounded”, and accordingly, discharged the accused who is a lady. Since cognizance was already taken for the offence under section 420 IPC, according to me, the discharge under section 249 Cr.P.C is perfectly valid and correct. In this juncture it is also relevant to note that the impugned order is dated 24.9.2005, by which the accused who is a lady was discharged in C.C.No.475/2002, thereafter nearly six years are over. Having regard to the facts and circumstances involved in the case and in the light Crl.R.PNO.2959 of 2005 :-5-: of the above discussion , I am of the view that there is no merit in the Crl.R.P which deserves to be dismissed. In the result, this Crl.R.P. is dismissed. V.K.MOHANAN, Judge. KVM/-