IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR MONDAY, THE 10TH DAY OF OCTOBER 2011/18TH ASWINA 1933 Crl.Rev.Pet.No. 2290 of 2003 ( ) -------------------------------- CMP.735/2003 of C.J.M.,THALASSERY REVISION PETITIONER(S)/COMPLAINANT: ---------------------- M/s.CHAKKARAKKAL BANKERS, REPRESENTED BY IT'S MANAGING PARTNER, P.V.UNNIKRISHNAN NAIR, S/O.CHANDUKUTTY, VINOD BHAVAN, CHOOLE, MOWENCHERRY P.O. BY ADVS.SRI.V.PREMCHAND SRI.V.TEKCHAND RESPONDENT(S)/ACCUSED: --------------- 1. C.H.MOIDU HAJI AND CO., CHAKKARAKKAL, MOWENCHERRY, KANNUR. 2. K.MUHAMMED, MUHARAS, NEAR MOWENCHERRY U.P.SCHOOL, MOWENCHERRY.P.O., KANNUR. 3. THE STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R1 & R2 BY ADV. SRI.PAUL K.VARGHESE R3 BY PUBLIC PROSECUTOR SRI.JAYAKRISHNAN THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10-10-2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: C.T.RAVIKUMAR, J. ---------------------------- Crl.R.P.No.2290 of 2003 ---------------------------- Dated 10th October, 2011 ORDER The question posed for consideration in this revision petition is whether a second complaint is barred when in an earlier complaint carrying the same allegations the same accused was acquitted under section 257 of the Code of Criminal Procedure, 1973 ? The complainant is the revision petitioner. He filed a complaint against the second accused alleging commission of an offence under section 420 of the Indian Penal Code. The case is that the second accused has availed an amount of Rs.99,000/- from him and issued a cheque, bearing No.228520 dated 15.3.2001, for the said amount. The said cheque had been dishonoured for insufficiency of amount and also on account of difference in the name of the drawer, on its presentation. It is alleged that accused No.2 had issued the cheque knowing fully that the cheque belonged to accused No.1 and thereby committed an offence under section 420 of the Indian Penal Code. On the same set of allegations against the same accused the complainant had, earlier, filed a complaint alleging commission of the same offence before the Court of Chief Judicial Magistrate, Thalassery. However, the court took cognizance only under section 138 of the Negotiable Instruments Act and no Crl.R.P.No.2290/2003 2 cognizance was taken under section 420 IPC. The said case was later, numbered as C.C.No.204 of 2001. Thereafter, he filed a petition under section 257 Cr.P.C. seeking permission to withdraw the complaint. On being satisfied of the existence of sufficient grounds for permitting the petitioner to withdraw the said complaint in C.C.No.204 of 2001 the learned Magistrate permitted the revision petitioner herein to withdraw the same and thereupon, acquitted the accused viz., the second respondent herein. Obviously, the said order was passed under section 257 of the Cr.P.C. on 24.2.2003. It was thereafter that the revision petitioner filed another complaint as C.M.P.No.735 of 2003 raising the same set of allegations against the same accused. This revision petition has been filed against the order dated 10.6.2003 of the Chief Judicial Magistrate, Thalassery under section 203 Cr.P.C., dismissing the said complaint. 2. I have heard the learned counsel appearing for the revision petitioner, the learned Public Prosecutor and also the learned counsel appearing for the second respondent. 3. As per the order impugned, which was passed under section 203 Cr.P.C. the Chief Judicial Magistrate considered the question whether the second complaint is maintainable in the facts and Crl.R.P.No.2290/2003 3 circumstances explained hereinbefore. It is stated therein that in the earlier complaint for the commission of an offence under section 420 I.P.C. the court took cognizance only under section 138 of the Negotiable Instruments Act and it was taken on the file as C.C.No.204 of 2001. The revision petitioner, who was fully aware of the fact that, despite the specific allegation regarding section 420 IPC in the earlier complaint, the court took cognizance only under section 138 of the Negotiable Instruments Act, did not pursue the matter any further to redress his grievances against the action in not taking cognizance under section 420 IPC. That apart, he had filed the petition requesting permission to withdraw his complaint before the Chief Judicial Magistrate Court, Thalassery in C.C.No.204 of 2001 under section 257 Cr.P.C.. The learned Magistrate entertained the said petition and on getting satisfied about the existence of sufficient grounds for granting permission to withdraw the complaint under section 257 Cr.P.C. granted such permission and consequently, acquitted the accused under section 257 Cr.P.C. Evidently, it is taking into account the said facts that the impugned oder dated 10.6.2003 was passed in C.M.P.No.735 of 2003 which contained the same set of allegations against the same accused. It was held that the complainant viz., the revision petitioner could not file a second complaint of the same nature alleging the same offence against the same accused based on the same cheque, under the aforesaid Crl.R.P.No.2290/2003 4 circumstances. It was further held that if the petitioner was aggrieved by the action in not taking cognizance under section 420 IPC on the first complaint he should have taken appropriate steps in accordance with law against the said order. Admittedly, in the earlier complaint also the allegation of the revision petitioner was that the second accused had committed an offence under section 420 IPC. However, the court did not take cognizance under section 420 IPC, whilst took cognizance only under section 138 of the Negotiable Instruments Act. Admittedly, the petitioner did not took up the matter any further, in accordance with law. That apart, instead of taking appropriate steps against the said action, he had chosen to file a petition under section 257 Cr.P.C. seeking withdrawal of the complaint and that ultimately culminated in the acquittal of the second accused under section 257 Cr.P.C. in C.C.No.204 of 2001. 4. The learned counsel for the revision petitioner contends that the order dated 10.6.2003 in C.M.P.No.735 of 2003 dismissing the complaint under section 203 Cr.P.C. citing the aforesaid reasons is unsustainable. To support the said contention the learned counsel relied on the decisions of the Hon'ble Apex Court in Pramatha Nath v. Saroj Ranjan (AIR 1962 S.C. 876) and Mahesh Chand v. B.Janardhan Reddy and Another (2003 (1) KLJ (NOC) 20). It is contended that the Crl.R.P.No.2290/2003 5 second complaint on the same facts is not completely barred. Relying on the aforesaid decisions of the Hon'ble Apex Court, it is contended that a second complaint on the same facts could be entertained in exceptional circumstances, where the previous order was passed on an incomplete record or on a misunderstanding of the nature of the complaint or it was manifestly absurd, unjust or where new facts which could not have been brought on record in the previous proceedings, despite due diligence. I have carefully considered the case of the revision petitioner. The revision petitioner could not bring his case under any of the grounds available in view of the aforesaid decisions of the Hon'ble Apex Court. Evidently, the revision petitioner did not have any grievance against the first order passed by the learned Magistrate. The petitioner cannot contend that order dated 24.2.2003 in C.C.No.204 of 2001 was passed on an incomplete record or on a misunderstanding of the nature of complaint or that it was manifestly absurd and unjust. Admittedly, the said order was passed on his own application under section 257 Cr.P.C. requesting for withdrawal of the complaint filed by him. In the decision reported in AIR 1962 SC 876 (supra) the Hon'ble Apex Court held that there is nothing in law which prohibits entertainment of a second complaint on the same allegations when the previous complaint had been dismissed under section 203 Cr.P.C. The petitioner did not have a case that the earlier complaint filed by him in C.C.No.204 of 2001 was Crl.R.P.No.2290/2003 6 dismissed under section 203 Cr.P.C. As already noticed hereinbefore, C.C.No.204 of 2001 was not actually dismissed whilst, the said case was permitted to be withdrawn on a petition filed by the revision petitioner herein under section 257 Cr.P.C. and the second accused therein was acquitted under section 257 Cr.P.C. When that be so, the petitioner cannot contend that the earlier order was passed on an incomplete record or on a misunderstanding of the nature of the complaint. It is after considering the allegations in the complaint that the court took cognizance only under section 138 of the Negotiable Instruments Act and virtually refused to take cognizance under section 420 IPC. I do not find any fault with the reasoning as also the findings of the learned Magistrate contained in the impugned order. In the said circumstances and for the foregoing reasons, I am of the view that the order passed by the learned Magistrate which is impugned in this revision petition calls for no interference and accordingly, this revision petition is dismissed. Sd/- C.T.RAVIKUMAR Judge TKS