IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 2616 of 2008()
1. ABRAHAM AUGUSTINE,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
For Petitioner :SRI.GRASHIOUS KURIAKOSE
For Respondent : No Appearance
The Hon'ble MR. Justice V.RAMKUMAR
Dated :05/08/2008
O R D E R
V. RAMKUMAR, J.
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Crl.R.P. No. 2616 of 2008
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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.