HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA CRL.R.C.No.1798 of 2010 JUDGMENT: This criminal revision case is directed against the order dated 20.07.2010 passed by the learned I-Additional Junior Civil Judge, Sattenapalli, Guntur District, returning the complaint in CFR.No.144 of 2010. A complaint was filed by the revision petitioner under Section 190 of Cr.P.C. before the I-Additional Junior Civil Judge, Sattenapalli against the 1st respondent-accused for the offences punishable under Sections 138 of the Negotiable Instruments Act and Sections 406 and 420 of I.P.C. on the allegations that the 1st respondent-accused borrowed an amount of Rs.35,00,000/- as hand loan from the petitioner-complainant herein and in discharge of the said liability, he issued a post paid cheque bearing No.399 dated 02.11.2009 for an amount of $ 92,000/- drawn on DCU (Digital Federal Credig Union), USA in favour of petitioner. The petitioner-complainant presented the said cheque for collection through his banker HDFC bank, Guntur branch on 02.11.2009, and it was returned with an endorsement ‘insufficient funds’. However, the learned Junior Civil Judge returned the complaint with an objection that original cheque was not enclosed. The petitioner-complainant resubmitted the said complaint stating that as per US banking laws, physical instrument cannot be returned to the beneficiary and therefore, he could not file the original cheque along with the complaint. Again the complaint was returned by the order impugned in this revision. The impugned order reads as under: “Explain how this complaint is maintainable without filing original of crucial document i.e., cheque under Indian Law”. The petitioner-complainant has relied upon a letter dated 14.7.2010 issued by HDFC Bank wherein it is stated, “…….. As per the US banking laws, physical instrument cannot be returned to the Beneficiary. A photocopy of the cheque along with the return reason was forwarded by the respective bank which is a legal copy. The copy can be treated as the original instrument for any further claims.” Basing on the said letter, the learned Counsel for the revision petitioner contends that copy of the cheque can be treated as the original as he could not procure and file along with the complaint, the original cheque because of US banking laws. He also refers to a decision of a Division Bench of the Madras High Court reported in A.VINAYAGAM AND OTHERS Vs. DR.SUBASH CHANDRAN[1], wherein in paras 14 and 15, it was held as under: “The combined reading of Section 2 (d) of the Code of Criminal Procedure, which defines “complaint” and Rules 28 and 111 of the Criminal Rules of Practice would suggest that all that the complainant has to do for lodging a complaint is to present a complaint to the Magistrate. That would pre-suppose that the complaint is filed with proper Court-fee, which would be paid along with the complaint. Careful scrutiny of the Criminal Rules of Practice as also the Code of Criminal Procedure does not show that anything more is required at this stage to be presented by the complainant or that any documents are also required to be filed along with the complaint. Once a complaint is filed, which answers the description in Section 2 (d) of the Code of Criminal Procedure along with proper Court-fees and copies there would be no question of doing anything further at that stage. In this behalf, Chapter XV of the Code of Criminal Procedure is extremely telling. It goes without saying, however, that Section 200 of the Code of Criminal Procedure commences with the cognizance taken by the Magistrate. Chapter XV deals with the complaints to the Magistrate and provides for all that the Magistrate has to do after taking the cognizance, that the Magistrate has to do under Section 200 (a). When the Magistrate takes cognizance upon receiving a complaint under clause (a) of Section 200, he acts on the basis of the contents in the complaint with a view to proceed in the matter and has the following courses open:- I. He has to examine the complainant and his witnesses, if any. II. After such examination, he may postpone the issuance of process by inquiring into the case by himself or directing an investigation to be made by a police officer. III. If the Magistrate is convinced after the examination of the complainant or as the case may be his witnesses, he may decide to issue the process. IV. He may straight away decide to dismiss the complaint, after such an exercise of examination of the complainant and the witnesses. Law does not know or provide any other mode of dealing with the complaint, much less returning the complaint. It is not possible for a Magistrate to return the complaint for the so called defects and if the defects are there in the complaint, the complainant has to suffer. There is no warrant in the Criminal Procedure Code or the Criminal Rules of Practice, empowering the Magistrate to return the complaint just because he thinks that there are any defects. In this behalf, the observation by both the learned Judges that the Magistrate has a power to return the complaint because he has a power to accept is clearly incorrect. In the first place, the Magistrate does not have a “power” to accept the complaint. That is not the power of the Court. That is the “duty” on the part of the Court in contradistinction to its “powers”. Again, unless there is a specific provision in the Code or the Rules, the Magistrate cannot find out his own procedure by returning the complaint as it is. In fact, when the complainant presents the case to the Magistrate that is not the stage of examining the defects and it is not for the Magistrate to examine the so called defects in the complaint. All that the Magistrate has to do is to consider the same by ordering the examination of complainant and/or as the case may be, his witnesses.” The learned Magistrate could not have returned the complaint when it was specifically stated by the revision petitioner that as per US banking laws he could not get the original cheque and file the same along with the complaint. The said version of the revision petitioner receives support from the letter of HDFC Bank dated 14.07.2010. In view of the aforesaid Division Bench decision of the Madras High Court, the learned Magistrate could have accepted the complaint and offered an opportunity to the revision petitioner to participate in the trial to prove his case, apart from his contention that as per US banking laws he could not get the original cheque and those laws can be maintained in Indian Courts. Therefore, the impugned order cannot sustain and is liable to be set aside. Accordingly, the Criminal Revision Case is allowed and the impugned order is set aside. The learned I- Additional Junior Civil Judge, Sattenapalli, is hereby directed to take cognizance of the offences against the accused, provided the complaint filed by the petitioner is in accordance with law. Office is directed to return the original papers to the learned Counsel for the petitioner. ________________________________ (GOPALA KRISHNA TAMADA, J) 14 -12-2010 Gsn. [1] 2000 CRL.L.J 1579