IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 1ST JULY 2008 / 10TH ASHADHA 1930 Crl.Rev.Pet.No. 2161 of 2008() ------------------------------ CMP.2604/2007 of CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER: PETITIONER/COMPLAINANT:- ------------------------------------------ THOMAS A CRUZ, PROPRIETOR, M/S THOMSON SANITATIONS, PATTOOR, THIRUVNANTHAPURAM. BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR RESPONDENT/ACCUSED: --------------------------- 1. SHAJAHAN, PALLIVILAKATHU, KALLIYUR, NEMON P.O., THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SRI. P. RAVINDRA BABU, PUBLIC PROSECUTOR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 01/07/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR , J. ========================== Crl.R.P. No.2161 of 2008 ========================== Dated this the 1st day of July, 2008. ORDER The petitioner, who is the complainant in C.M.P. No. 2604 of 2007 on the file of the Chief Judicial Magistrate, Thiruvananthapuram, which was a prosecution under Section 138 of the Negotiable Instruments Act, involving a cheque for Rs.8000/-, challenges the order dated 17.08.2007 passed by the Magistrate dismissing the complaint for default on the ground that the complainant was absent and there was no representation. It appears that the complainant had also filed a proof affidavit under Section 145 of the N.I. Act, in which case it was not necessary for the Chief Judicial Magistrate to insist on the personal appearance of the complainant. Since the recording of the sworn statement of the complaint under Section 200 Cr.P.C is not necessary, the learned Magistrate could have after perusing the complaint and the proof affidavit, either taken cognizance of the offence if the offence is made out or could have CRL.R.P. NO. 2161/2008 : 2: rejected the complaint if the averments in the complaint and the proof affidavit did not reveal the commission of the offence. The dismissal of the complaint for default for the non-appearance of the complainant was therefore illegal. Accordingly, the impugned order is set aside and C.M.P. No. 2604 of 2007 shall stand restored to file. The petitioner shall appear before the court below without any further notice on 16.07.2008. This Crl.R.P. is disposed of as above. Dated this the 1st day of July, 2008. V. RAMKUMAR, JUDGE. rv