IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 22ND SEPTEMBER 2008 / 31ST BHADRA 1930 Crl.Rev.Pet.No. 3223 of 2008() ------------------------------ CMP.995/2008 of JUDICIAL 1ST CLASS MAGISTRATE,KOTHAMANGALAM .................... REVISION PETITIONER:COMPLAINANT: ----------------------------------------------------------- MATHAI GEORGE, S/O MATHAI, EDAMPAZHATHIL HOUSE, KEERAMPARA KARA, KOTHAMANGALAM. BY ADV. SRI.N.K.MOHANLAL RESPONDENTS:ACCUSED: ------------------------------------------ 1. ROSAMA, W/O XAVIER, PARATHANATH HOUSE, PARADU, KEERAMPARA P.O., KOTHAMANGALAM. 2. STATE OF KERALA, REPRESENTED BY PUBLIC PORSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. P.RAVEENDRA BABU THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 22/09/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: Kss M.SASIDHARAN NAMBIAR,J. =========================== Crl.R.P. NO. 3223 OF 2008 =========================== Dated this the 22nd day of September,2008 ORDER Petitioner is the complainant and first respondent the accused in a complaint filed by petitioner before Judicial First Class Magistrate, Kothamangalam under section 190 and 200 of Code of Criminal Procedure. The complaint of the petitioner was that first respondent borrowed Rs.40,000/- and towards its repayment issued a cheque drawn in his account maintained in Kerrampara Service Co-operative Bank which was dishonoured for want of sufficient funds when presented for encashment and after complying with due formalities petitioner lodged a complaint under section 138 of Negotiable Instruments Act before Judicial First Class Magistrate, Kothamangalam which was taken on file as C.C.828/2001. Subsequently complaint was dismissed under section 256(1) of the Code of Criminal Procedure on the CRRP3223/2008 2 failure of the petitioner to appear. Subsequently petitioner filed an appeal, along with an application to condone the delay for leave to appeal which was dismissed by this court as per order dated 24.5.2004. The ground taken in the application was that he was misled by the counsel and was therefore not aware of the posting date. While dismissing the Crl. Leave Petition this court made it clear that if the case of the petitioner is correct, it is a fit case for him to proceed against his counsel. After dismissal of the Crl.Leave Petition on 24.5.2004, CMP No.995/2008 a complaint was lodged before learned Magistrate in 2008 contending that first respondent issued the cheque and cheated the petitioner and thereby committed an offence under section 418 and 420 of IPC. Learned Magistrate under the impugned order dated 6.6.2008, dismissed the complaint. It is challenged in this petition filed under section 397 and 401 of Code of Criminal Procedure. 2. Learned counsel appearing for petitioner CRRP3223/2008 3 was heard. 3. The argument of the counsel is that dismissal of C.C.8/2001 under section 256(1) of Code of Criminal Procedure is not a ground for dismissing the second complaint as the offence involved in C.C.828/2001 is section 138 of Negotiable Instruments Act and the offence alleged in the second complaint is under section 418 and 420 of IPC and as ingredients of the offences are made out in the complaint, learned Magistrate should have proceeded with the complaint instead of dismissing the complaint under section 203 of Code of Criminal Procedure. 4. The cheque was issued by first respondent on 15.1.2001. A notice demanding the amount covered by the dishonoured cheque alleging that he has committed the offence under section 138 of N.I.Act was sent to first respondent on 6.2.2001. Complaint alleging that first respondent committed the offence under section 138 of N.I. Act was dismissed under section 256(1) of Code of Criminal CRRP3223/2008 4 Procedure on 17.8.2002. Though petitioner belatedly filed an application for leave to file an appeal against the dismissal of the complaint before this court that was dismissed on 24.5.2004. It is four years thereafter the second complaint was filed which was dismissed by the learned Magistrate. 5. The relevant allegation in the second complaint is in paragraph 7. It is to the effect that accused by her conduct of cheating dishonestly inducing delivery of money by issuance of cheque with knowledge that wrongful loss may ensue to person whose interest first respondent is bound to protect and thereby committed the offence under section 418 and 420 of I.P.C. When the first complaint was filed, petitioner had no case that he was induced to part with the money by first respondent with an intention to cheat. There was no case of any cheating at all. Though that complaint filed alleging offence only under section 138 of N.I.Act, if in fact petitioner was CRRP3223/2008 5 induced to part with the money by the first respondent, it would have been specifically pleaded in the first complaint itself. Even in the second complaint, which was dismissed by the learned Magistrate, there is no case that he was made to part with the money by the inducement made by first respondent. On the other hand, the pleading is “accused by her conduct of cheating dishonestly inducing the delivery of money by the issuance of cheque with the knowledge that wrongful loss may ensue to person whose interest the accused bound to protect and thereby committed the offence punishable under section 420 and 418 of IPC.” In such circumstance, I do not find any reason to interfere with the dismissal of the complaint under section 203 of Code of Criminal Procedure. Criminal Revision Petition is dismissed. M.SASIDHARAN NAMBIAR JUDGE tpl/- M.SASIDHARAN NAMBIAR, J. --------------------- W.P.(C).NO. /06 --------------------- JUDGMENT SEPTEMBER,2006