IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR FRIDAY, THE 18TH JULY 2008 / 27TH ASHADHA 1930 Crl.Rev.Pet.No. 2399 of 2008() ------------------------------ CMP.1932/2007 of JUDL. MAGISTRATE OF FIRST CLASS COURT, IRINJALAKUDA .................... REVN. PETITIONER: PETITIONER/COMPLAINANT ---------------------------------------- UMESH BABU, S/O.MADHAVAN, THAYYIL HOUSE, KIZHAKEKODALI, VELLIKULANGARA, MANAGING DIRECTOR, NEW RANGE KURIES, PVT.LTD, KODAKARA. BY ADV. SRI.G.SREEKUMAR (CHELUR) RESPONDENTS: STATE OF KERALA AND ACCUSED ---------------------------------------- 1. THE STATE OF KERALA, THROUGH THE PUBLIC PROSECUTOR, HIGH COURT OF KERLA, ERNAKULAM. 2. V.K.VIKRAM SING, VALIAPARAMBIL HOUSE, KAZHIMBRAM P.O, EDAMUTTAM, THRISSUR DISTRICT. BY PUBLIC PROSECUTOR SRI.P. RAVINDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 18/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 2399 of 2008 * * * * * * * * * * * * * * * * * * Dated: 18-07-2008 ORDER Petitioner who is the complainant in a private complaint filed under Sec. 138 of the Negotiable Instruments Act, 1181 involving a cheque for Rs. 95,000/- and registered as C.M.P. No. 1932 of 2007 before the J.F.C.M. Irinjalakkuda, challenges the order dated 24-7- 2007 passed by the Magistrate dismissing the complaint under Sec. 203 Cr.P.C. for the reason that the complaint as well as the affidavit in lieu of sworn statement do not contain the averment that the accused has failed to pay the cheque amount within 15 days of receipt of the lawyer notice. 2. Since the complaint was dismissed at the threshold without issuing notice to the accused, notice to the 2nd respondent/accused in this Revision is dispensed with. 3. The learned Magistrate appears to have taken a hyper technical view in the matter. It is true that both the complaint as well as the affidavit in lieu of the sworn statement did not contain an averment that the accused has failed to pay the cheque amount within 15 days of receipt of the statutory notice. But then, the very Crl.R.P. No. 2399 of 2008 -:2:- fact of filing the complaint under Sec. 138 was on account of the failure to pay the amount. The complainant's specific grievance is that even though statutory notice was issued to the accused in the correct address he had evaded service . If so, the complaint cannot contain an averment that the accused failed to pay the cheque amount even after receipt of the statutory notice. The very fact that Sec. 138 of the N.I. Act has been invoked indicates that the complainant is prosecuting the accused for the non-payment of the cheque amount after the giving of notice under the said provision. Moreover, if the complaint as well as the affidavit in lieu of the sworn statement is silent about an ingredient of the offence, the Magistrate ought to have elicited the necessary facts from the complainant. This duty of the Magistrate has been highlighted by this Court in the decision reported in 2006 (3) KLT 447. That has not been done. Instead, the learned Magistrate has taken the pleasure of dismissing the complaint at the threshold under Sec. 203 Cr.P.C. In fact, the complaint could not have been dismissed under Sec. 203 Cr.P.C. at the pre-cognizance stage. If at all the Magistrate was of the view that the complaint as well as the affidavit in lieu of the sworn statement were silent about the necessary ingredient of the offence, the complaint could have only been rejected. The dismissal under Sec. Crl.R.P. No. 2399 of 2008 -:3:- 203 can only be done at the post-cognizance stage. For that reason also, the impugned order cannot be sustained and is accordingly set aside. C.M.P. No. 1932 of 2007 on the file of the J.F.C.M. Irinjalakkuda shall stand restored to file. The petitioner shall appear before the court below without further notice on 11-08-2008. V. RAMKUMAR, (JUDGE) ani.