IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR TUESDAY, THE 5TH AUGUST 2008 / 14TH SRAVANA 1930 Crl.Rev.Pet.No. 2616 of 2008() ------------------------------ CRMP.1493/2008 of JUDL.MAGISTRATE OF FIRST CLASS, SULTHANBATHERY .................... REVN. PETITIONER: ------------------ ABRAHAM AUGUSTINE, S/O.AUGUSTINE, MEZHAYIL HOUSE, PARTNER M/S.PIPE HOUSE, COLLEGE ROAD SULTHAN BATHERY WAYANAD. BY ADV. SRI.GRASHIOUS KURIAKOSE RESPONDENTS: ------------- STATE OF KERALA, REP. BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. C.M. NAZAR THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 05/08/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V. RAMKUMAR, J. * * * * * * * * * * * * * * * * * * Crl.R.P. No. 2616 of 2008 * * * * * * * * * * * * * * * * * * Dated: 05-08-2008 ORDER Petitioner who was the complainant in Crl. M.P. No. 1493 of 2008 on the file of the J.F.C.M. I, Sulthanbathery, which was a prosecution under Sec. 138 of the Negotiable Instruments Act , 1881 challenges the order dated 4-7-2008 passed by the Magistrate dismissing the complaint under Sec. 203 Cr.P.C. due to the absence of the complaint. 2. Since the dismissal of the complaint was before the appearance of the accused, notice to the accused in this revision is dispensed with. 3. The order passed by the learned Magistrate is exfacie unsustainable. Along with the complaint the petitioner had filed a proof affidavit also under Sec. 145 of the N.I. Act. If the Magistrate was refusing to take cognizance of the offence on the ground that there was no sufficient ground for proceeding against the accused, then he had to give reasons and in which case he could not have dismissd the complaint under Sec. 203 Cr.P.C. He could only reject the complaint. On the other hand, if the Magistrate, after perusing -:2:- the proof affidavit had good reason to hold that there was ground for proceeding against the accused he should have issued process to the accused. In any view of the matter, the impugned order cannot be sustained and is accordingly set aside and Crl.M.P. No. 1493 of 2008 shall stand restored to file. Petitioner shall appear before the Magistrate without any further notice on 20-8-2008 by which time he shall have taken all necessary steps for the further progress of the complaint. This Crl.R.P. is disposed of as above. V. RAMKUMAR, (JUDGE) ani.