IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR WEDNESDAY, THE 24TH FEBRUARY 2010 / 5TH PHALGUNA 1931 Crl.Rev.Pet.No. 609 of 2010() ----------------------------- AGAINST THE ORDER DATED 25/02/2005 IN CMP. 160/2004 IN CC.243/2005 of JUDL. MAGISTRATE OF FIRST CLASS COURT-I, ATTINGAL .................... REVN. PETITIONER(S): REVISION PETITIONER/COMPLAINANT: ----------------------------------------------------- SIDHARTHAN, S/O. KESAVAN, ANDAN KADAVIL, KADAKAM, CHIRAYINKEEZHU, THIRUVANANTHAPURAM. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): ACCUSED & STATE: ------------------------------- 1. S. VIJAYAKUMAR, MAMAM LALITHALAYAM, KIZHUVILAM VILLAGE & DESOM, ATTINGAL. 2. S. SASIDHARAN NAIR, MAMAM LALITHALAYAM, KIZHUVILAM VILLAGE & DESOM, ATTINGAL. 3. R.S. MOLI SASIDHARAN NAIR, MAMAM LALITHALAYAM, KIZHUVILAM VILLAGE & DESOM, ATTINGAL. 4. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. PUBLIC PROSECUTOR SRI. P.A. SALIM SRI.M.DINESH FOR R2-3 THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 24/02/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 609 of 2010 * * * * * * * * * * * * * * * * * * Dated this the 24th day of February, 2010 ORDER The revision petitioner herein is the complainant in C.C. No. 243 of 2005 on the file of the J.f.C.M. I, Attingal. The revision petitioner challenges the order dated 25-2-2005 passed by the Magistrate taking cognizance of an offence punishable under Section 420 I.P.C. against the first accused only . 2. The case of the petitioner/complainant in the private complaint filed by him is as follows:- The first accused borrowed Rs. 40,000/- from the complainant on 28-7-2001 and issued the cheque in question bearing No. 264028 drawn on the Attingal Branch of the South Indian Bank. At the time of issuing the said cheque, the first accused had assured the complainant that the cheque was drawn on his account with the South Indian Bank. When the complainant presented the cheque in question for collection, it was dishonoured with the endorsement “funds insufficient”. On 22- 10-2001, the complainant issued statutory notice under proviso (b) to Sec. 138 of the Negotiable Instruments Act, 1881 ( “the N.I. Crl.R.P. 609 of 2010 -:2:- Act” for short) to the first accused. After receving the said notice, the first acused caused a reply notice to be issued to the complainant raising false and untenable allegations and suppressing the fact that the cheque was issued in respect of the joint account of accused Nos. 2 and 3 who are brother and sister- in-law of the first accused. Since no payment was made by the first accused, even after receipt of the statutory notice the complainant filed Crl.M.P. 13381/2001 before the J.F.C.M. I Attingal against the first accused for prosecuting him for an offence punishable under Sec. 138 of the N.I.ACt. The learned Magistrate after recording the sworn statement of the complainant summoned and examined the Bank Manager on 16-1-2003. During the examination of the Bank Manager, it was found that the account was not in the name of the first accused but was in the joint names of accused Nos. 2 and 3. Accused Nos. 1 to 3 had cheated the complainant and were committing an offence punishable under Sec. 420 I.P.C. It was with the knowledge and consent of accused Nos. 2 and 3 and with the intention of cheating and causing wrongful loss to the complainant that accused Nos. 2 and 3 made available to the first accused a cheque leaf belonging to them and induced the complainant to part with Rs. 40,000/- to the first accused. A1 to A3 have thereby committed an offence punishable under Section 420 I.P.C. 3. The complaint was filed as C.M.P. No. 160 of 2004 After recording the sworn statement of the complainant on 19-06- Crl.R.P. 609 of 2010 -:3:- 2004 the learned Magistrate examined the Bank Manager and marked Exts. P1 computer extract of the statement of accounts and P2 Cheque Received Register. Thereafter, on 25-2-2005, the learned Magistrate passed the impugned order holding that the complainant has made out a prima facie case against A1 only and took cognizance of the offence against A1 alone. As per the said order there is an implied discharge of A2 and A3. Hence this Revision. 4. The first respondent/first accused has not chosen to enter appearance even though he has been duly served. 5. Adv. Sri. Dinesh appearing for respondents 2 and 3 who are accused Nos. 2 and 3 made the following submissions before me in support of the impugned order:- 6. Except for the fact that A2 is the brother of A1, there was nothing to indicate any dishonest intention on the part of A1 to A3 to cheat the complainant. The averments in the complaint are vague and the same are not sufficient to make out a prima facie case against A2 and A3. 6. I am afraid that I cannot accept the above submissions. Admittedly, the cheque handed over by A1 to the complainant pertains to the joint account of A2 and A3. A1 and A2 are brothers and A3 is the wife of A2. It is not known as to how the cheque leaf of which A2 and A3 are the joint account holders came into the hands of A1 to be able to be handed over to the complainant unless A2 and A3 were also privies to the same. That Crl.R.P. 609 of 2010 -:4:- is a matter which was within the exclusive knowledge of A1 to A3. The complainant who is the payee under the cheque cannot be expected to know as to how the cheque leaf belonging to A2 and A3 came into the hands of A1. There are sufficient averments in the complaint to the effect that it was with the knowledge and consent of A2 and A3 to cause wrongful loss to the complainant that A2 and A3 made available the cheque to A1 and A1 borrowed the sum of Rs. 40,000/- from the complainant by making use of the said cheque leaf. It is, in my view, sufficient to make out a case against A2 and A3. Hence, the failure on the part of the Magistrate to take cognizance against A2 and A3 cannot be supported. The impugned order is set aside and cognizance shall be deemed to have been taken against A1 to A3.The parties shall appear before the court below on 22-3-2010 without any further notice. If a question of identity does not arise, it shall be open to the accused persons to apply for personal exemption by incorporating the necessary avements for such exemption. In case such a petition is filed, the learned Magistrate shall consider the same favourably. This Revision is disposed of as above. Sd/-V. RAMKUMAR, (JUDGE) ani. /true copy/ P.S. to Judge