IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MRS. JUSTICE K.HEMA THURSDAY, THE 14TH DECEMBER 2006 / 23RD AGRAHAYANA 1928 Crl.Rev.Pet.No. 4201 of 2006(A) ------------------------------- CMP.2634/2006 of ADDL. CHIEF JUDICIAL MAGISTRATE COURT, TRIVANDRUM .................... REVN. PETITIONER: COMPLAINANT: ------------------------------ GIRIJAVALLABHAN NAIR, PADMAVILASOM, CHOOZHATTUKOTTA, MALAVAM P.O., NEYYATTINKARA. BY ADV. SRI.SUMAN CHAKRAVARTHY RESPONDENT: STATE: ------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR (SRI.C.K. SURESH) THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 14/12/2006, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: K. HEMA, J. =.=.=.=.=.=.=.=.=.=.=.=.=.=.=.=.=.=.= Crl.R.P. No.4201 of 2006 =.=.=.=.=.=.=.==.=..=.==.=.=.=.=.=.=.=. Dated this 14th day of December, 2006. ORDER This revision petition arises from an order passed by the Add. Chief Judicial Magistrate Court dismissing a complaint alleging offence under section 138 of the Negotiable Instruments Act (N.I. Act for short) before the said Magistrate Court. On taking cognizance of the offence, the court proceeded to take sworn statement and petitioner was allowed to file affidavit in lieu of sworn statement. The sworn statement was also recorded. Thereafter, the complainant remained absent, as seen from the order under challenge. When the case came up for consideration neither the complainant nor his counsel were present in court. The trial court found that, “from the conduct of the complainant from the very beginning of the filing of the complaint, it can be seen that complainant is not diligent in prosecuting the matter.” Hence, the complaint was dismissed for default. The said order is under challenge. 2. Learned counsel appearing for revision petitioner submitted that the Magistrate court cannot pass an order of dismissal for default, but it is bound to follow the procedure laid down under section 203, if it proposes to dismiss the complaint, after taking sworn statement of complainant. On going through order under challenge, it can be seen that the only reason Crl. R.P.4201/06 2 for dismissing the complaint was absence of complainant and counsel on the relevant date and also the conduct of the complainant in not being diligent in prosecuting the case. 3. A reading of section 203 of the Code shows that if a Magistrate examines complainant and other witnesses, if any, and the substance of such examination is recorded in writing, the Magistrate has to consider such statements on oath of the complainant and of the witnesses, and the result of the inquiry or investigation, if any, under section 202 of the Code, before he proceeds to dismiss the complaint under section 203 of the Code. It is only after considering sworn statement and result of inquiry that the Magistrate can form an opinion whether there is any sufficient ground or not for proceeding. In this case, the Magistrate has not considered at least the statement of the complainant which was stated to be made by filing an affidavit. 4. Since an affidavit has been filed insisting for sworn statement, the court ought to have considered the statement and formed an opinion whether based on such material, if any, there was any ground for proceeding any further. Even if the sworn statement or result of investigation under section 202 are not available, the material already available ought to have been considered by the trial court and the reasons should have been recorded why it shall not proceed any further [Vide Fr. Abraham v. Thomas (1989(1) KLT 85 ]. Crl. R.P.4201/06 3 5. It can also be seen from section 203 of the Code that the Magistrate has to form an opinion that there is no sufficient ground for proceeding, based on the materials stated in section 203. If he dismisses the complaint on such ground, in every such case, he shall briefly record his reasons for doing so. In this case, learned Magistrate has not considered any of the materials which are relevant for consideration under section 203 of the Code. He has also not formed an opinion that there is no sufficient ground for proceeding on the basis of such materials. Therefore the order under challenge is illegal and not consistent with section 203 of the Code. 6. The order under challenge is therefore set aside. The learned Magistrate is directed to take the case on file and dispose of the matter in accordance with law. This revision petition is allowed. K. HEMA, JUDGE. Krs.