IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 28TH MARCH 2011 / 7TH CHAITHRA 1933 Crl.Rev.Pet.No. 841 of 2011() ----------------------------- CMP.535/2005 of JUDL.MAGISTRATE OF FIRST CLASS COURT, TIRUR .................... REVN. PETITIONER(S): REVISION PETITIONER/COMPLAINANT ---------------------------------------------------- T.V.SURESH, S/O.T.R.VELAYUDHAN, THAYYIL HOUSE, UDAYA NIVAS, P.O.RANDATHANI, TIRUR TALUK. BY ADV. SRI.A.KRISHNAN RESPONDENT(S): ACCUSED 1 AND 2 ------------------------------ 1. UMMER KUTTY, S/O.KUNHIMOIDEEN KUTTY, MUTHUVIL KALODY HOUSE, P.O.RANDATHANI, TIRUR TALUK, PIN.676 510. 2. KUNHAMMU, S/O.MUHAMMED, THEYYAMPATTIL HOUSE, KALPAKANCHERRY.P.O., TIRUR TALUK, PIN-676 551. 3. STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA AT ERNAKULAM. PIN-680 031. ADV. SRI.K.P.SUDHEER FOR R1-2 SRI.SUMODH MADHAVAN NAIR FOR R1-2 PUBLIC PROSECUTOR SRI.V.TEK CHAND THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 28/03/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J ------------------------------- Crl.R.P.NO.841 OF 2011 ------------------------------------------------- Dated this the 28th day of March, 2011. ORDER The complainant in a private complaint, i.e., C.M.P.No.535 of 2005 of the Court of Judicial First Class Magistrate, Tirur is the revision petitioner, since the learned Magistrate dismissed his complaint. 2. I have heard the counsel for the revision petitioner as well as the respondents 1 and 2. 3. On a bare perusal, it is crystal clear that the impugned order is issued without application of judicial mind. No where in the order it is stated what are the offences alleged against the accused/respondents. The learned Magistrate, according to the counsel for the petitioner, went to the extent to say that no other witness is examined in support of the case of the complainant which is diametrically opposite to the real facts. The counsel for the revision petitioner says that one Arun Kumar was examined as CW2 who was working as Manager of Popular Car, Crl.R.P.NO.841 OF 2011 2 Edericode Branch. 4. According to me, the approach of the learned Magistrate is not correct in holding that the oral statement of complainant “alone” is “not sufficient” to make out a prima facie act against the accused. There is no discussion and no reason is assigned by the learned Magistrate as to how the learned Magistrate came into the conclusion that the evidence of one witness is insufficient to make out a prima facie case. The requirement of passing a speaking order is manifest from the very impugned order itself. The Section alleged in the private complaint against the accused, according to the learned counsel for the petitioner is that under Section 465 and 379 of IPC. The bare fact given by the learned Magistrate in the impugned order is to the effect that according to the complainant A1 took away signed cheque leaves of the complainant from the Car in which he travel along with A1 and subsequently A1 mis- used the cheque leaves to institute the case under Section 138 of the N.I.Act. No reason is stated as to why the above Crl.R.P.NO.841 OF 2011 3 facts are not sufficient to constitute the offence under Section 465 and 379 of IPC. Even though, only one witness is examined and if such witness has deposed all the fact which are sufficient to constitute the essential ingredients of a particular offence, the same is sufficient to create grounds or prima facie case to proceed against the accused. But no details are discussed in the order. The counsel for the respondent has not disputed the fact that apart from CW1, CW2 was also examined but still then the learned Magistrate says that only the complainant alone was examined. From the fact of this, it is crystal clear that the learned Magistrate failed to consider all the relevant inputs including the sworn statement of the complainant as well as CW2 and to find out whether there are grounds to proceed against the accused. But in the impugned order no legally and factually sustainable reasons are given in support of the findings. Therefore, the order of the learned Magistrate is not sustainable. In the result, this revision petition is disposed of Crl.R.P.NO.841 OF 2011 4 setting aside the order dated 26.09.2009 in C.M.P.No.535 of 2005 of the court of Judicial First Class Magistrate, Tirur and remitted the matter back to the learned Magistrate to consider the entire materials including the statement of CW1 and CW2 and to take a fresh decision, by assigning cogent and sufficient reasons, in case, if he finds that no ground to proceed against the accused. As the complaint pertains to the year 2005, the learned Magistrate is directed to expedite the matter and pass an order as directed above as expeditiously as possible, at any rate within three months from the date of receipt of the order of this Court which will be produced by the revision petitioner. V.K.MOHANAN, JUDGE pm