IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN MONDAY, THE 30TH AUGUST 2010 / 8TH BHADRA 1932 Crl.Rev.Pet.No. 2440 of 2010() ------------------------------ ST.1590/2008 of JFMC - IV, KOCHI-5. .................... REVN. PETITIONER: PETITIONER ----------------------------------------------- JENCE K.R.,KOCHUKALAYIL HOUSE, CHALAKKAPPARA,KANJIRAMATTOM P.O.,ERNAKULAM. BY ADV. SRI.RAFFEEKH .K RESPONDENT: ------------------- 1. SREEDEVI ANILKUMAR, AGED 33 YEARS, CHAKKALAKORATH HOUSE, KUZHIKAD, AMBALAMEDU P.O.,ERNAKULAM. 2. STATE OF KERALA, REPRESETNED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. R2 BY P.P. SMT. SUMANGALA P.N. THIS CRIMINAL REVISION PETITION HAVING COME UP FOR ADMISSION ON 30/08/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: V.K.MOHANAN, J. --------------------------------------- Crl.R.P. No. 2440 of 2010 --------------------------------------- Dated the 30th August, 2010 ORDER This Revision Petition is preferred by the complainant in a prosecution for the offence under section 138 of the Negotiable Instruments Act as he is aggrieved by the order dated 13.1.2010 in S.T.No.1590/2008 dismissing his complaint under section 204(4) Cr.P.C by the Judicial Ist Class Magistrate-IV, Kochi-5. 2. The learned counsel for the revision petitioner submitted that step has already been taken and process paid as evidenced by the endorsement in the process register as A-18. It is also the submission of the learned counsel that the cheque in question covers an amount of Rs.85,000/-. 3. From the impugned order it appears that on the date of the impugned order, neither the complainant nor his counsel was present and also no step was taken Crl.R.P. No.2440/10 :-2-: against the first accused as directed. From the averments contained in paragraph 5 of the appeal memorandum, it appears that originally the case was posted on 1.12.2008 for appearance of the accused which shows that summons has already been issued. It is further stated that on that day, the complainant was represented and it was adjourned to 2.4.2009 and on 2.4.2009 the complainant was directed to take steps. According to the counsel, thereafter on 12.10.2009, the case was advanced at the instance of the complainant and filed a petition to withdraw the complaint against the accused No.2 and that petition was allowed and steps were already taken against the Ist accused on 29.9.2009 as No.A-18 and the same was registered in the process register. It is also submitted by the learned counsel that the cheque covers an amount of Rs.85,000/-. From the above facts, it appears that on taking cognizance, the court has already issued process Crl.R.P. No.2440/10 :-3-: against the accused and though the complaint against the 2nd accused is already withdrawn, the steps as ordered by the court was taken against the other accused as per the endorsement contained as No.A-18 in the process register. Even if it is taken as true, neither the complainant nor his counsel was present on the date of the impugned order and therefore, it cannot be held that the learned Magistrate is wrong in dismissing the complaint, especially, when the payment of process as ordered by the court is not brought to the notice of that court. However, the cheque in question is for an amount of Rs.85,000/- and though cognizance for the offence under section 138 is already taken by the learned Magistrate, there is no decision on merit and hence I am of the view that one more opportunity can be given to the complainant to prosecute the matter on merit, but subject to terms since there was no representation on the date of the impugned order and the Crl.R.P. No.2440/10 :-4-: factum of payment of process was not brought to the notice of the court. In the result, this Crl.R.P is disposed of setting aside the order dated 13.1.2010 in S.T.No.1590/2008 of the court of Judicial First Class Magistrate-IV, Kochi-5 on condition the petitioner depositing a sum of Rs.1500/- in the court below. Accordingly, the revision petitioner is directed to appear before the court below on 4.10.2010 on which date the learned Magistrate is directed to restore the complaint on file and on his satisfaction that the petitioner deposits the amount as directed above, he shall proceed with the complaint in accordance with the procedure and law and dispose of the same on merit. V.K.MOHANAN, JUDGE kvm/- Crl.R.P. No.2440/10 :-5-: KVM/- O.P.No. Crl.R.P. No.2440/10 :-6-: JUDGMENT Dated:..