IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE A.K.BASHEER THURSDAY, THE 10TH APRIL 2008 / 21ST CHAITHRA 1930 Crl.Rev.Pet.No. 677 of 2001(B) ----------------------------- CC.550/1997 of JUDL.MAGISTRATE OF FIRST CLASS-II, ALUVA .................... REVN. PETITIONER/COMPLAINANT: ------------------------------------- MUHAMMED, S/O.MOIDEEN, NJAKKADA VEEDU, THIRKKAKKARA, NORTH VILLAGE, H.M.T. COLONY P.O., KALAMASSERY. BY ADV. SRI.T.A.UNNIKRISHNAN RESPONDENTS/ACCUSED: ---------------------------- MANI, S/O.CHANDRASEKHARAN NAIR, PUTHENPURAYIL CHIRAGARA VEEDU, THIRKKAKKARA NORTH VILLAGE, H.M.T. COLONY, H.M.T. COLONY P.O., KALAMASSERY. THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON 10/04/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: A.K.BASHEER, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Crl.R.P.No.677 OF 2001 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of April 2008 ORDER Complainant in a private complaint is the revision petitioner. He had filed the above complaint against the respondents herein alleging commission of offence punishable under Section 420 IPC and 138 of the Negotiable Instruments Act. 2. The complainant was examined as PW1 and his two witnesses were examined as PWs2 to 3. Exts.P1 to P7 were also marked in the case. 3. The complainant had deposed before the court that the accused had borrowed a sum of Rs.58,000/- from him on December 30, 1996 with the assurance that it would be repaid soon. But when the accused failed to discharge the liability, the complainant had made a demand for repayment. At that time, the accused issued Ext.P1 cheque on June 20, 1999 promising that the cheque will be honoured on presentation. But when the cheque was presented in the bank, it was dishonoured with the Crl.R.P.No.677 OF 2001 :: 2 :: endorsement ‘signature differs’. According to the complainant, he had accepted Ext.P1 cheque believing that it was drawn on the account of the accused and that it would be honoured on presentation. But it had later turned out that the cheque was not drawn by the accused on his account, but it was in fact yet another person's account from which Ext.P1 cheque was actually drawn. The evidence of PW2 corroborated the above contention raised by the complainant. 4. However, the learned Magistrate took the view that the accused cannot be said to have committed the offence punishable under Section 420 IPC since admittedly the accused had not issued Ext.P1 cheque at the time when the money was lent to him by the complainant. Therefore the accused was discharged. 5. Apparently, the learned Magistrate had not considered the question whether the accused would have been liable, if there was evidence on record to show that he had drawn Ext.P1 cheque from another's account. The accused had not disputed his signature in Ext.P1 cheque. 6. Though notice was served on the respondent through Crl.R.P.No.677 OF 2001 :: 3 :: special messenger, he has not appeared either in person or through counsel. 7. In any view of the matter, the learned Magistrate ought to have given an opportunity to the complainant to adduce further evidence. The order of discharge under Section 245(1) was not at all warranted. Therefore, the impugned order is set aside. The learned Magistrate shall proceed with the case and dispose it off in accordance with law after affording opportunity to the complainant and the accused to adduce further evidence if they so choose. Criminal Revision Petition is disposed of as above. (A.K.BASHEER, JUDGE) jes