IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.Rev.Pet.No. 1705 of 2008()
1. DR.K.V.BHAVADAS, S/O.P.N.S.ACHAN,
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE PUBLIC
... Respondent
For Petitioner :SRI.SIBY MATHEW
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice V.RAMKUMAR
Dated :09/06/2008
O R D E R
V. RAMKUMAR, J.
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Crl.R.P. No. 1705 of 2008
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Dated: 9-06-2008
ORDER
The Revision Petition is the complainant in a prosecution under
Sec. 138 of the Negotiable Instruments Act, 1881 involving two
cheques altogether for a sum of Rs. 29,000/-. The complaint was
filed before the Chief Judicial Magistrate, Manjeri and registered as
C.M.P. No. 10819 of 2007. The learned Chief Judicial Magistrate, as
per the impugned order dated 13-3-2008 dismissed the complaint
mainly for the reason that there was no demand for the amount
covered by the dishonoured cheques and that if at all there was a
demand in the lawyer notice it was only for the amount under the
original transaction.
2. I am afraid that I cannot agree with the above view taken
by the learned Chief Judicial Magistrate. The Magistrate was taking a
hyper- technical view of the matter . After calling for the records I
perused the lawyer notice issued by the revision petitioner to the
accused under Sec. 138 Cr.P.C. The notice contains a specific demand
of the chque amounts after adverting to the factum of borrowal and
issuance of two cheques for an amount totalling to Rs. 29,000/-.
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3. The learned Magistrate was also wrong in dismissing the
complaint under Sec. 203 Cr.P.C. at the pre-cognizance stage. If
according to the Magistrate, the complaint and the supporting
documents produced along with the complaint did not make out the
offence alleged the only course open to the Magistrate was to reject
the complaint at that stage. Dismissal of a complaint under Sec. 203
can only be at the post cognizance stage. For that reason also the
impugned order is unsustainable and is accordingly set aside.
4. Since the dismissal of the complaint was before the
issuance of process to the accused, notice to the accused in this
Revision is dispensed with.
In the result, this Crl.R.P. is allowed and C.M.P. No. 10819 of
2007 shall stand restored to file before the Chief Judicial Magistrate,
Manjeri who shall take cognizance of the offence punishable under
Sec. 138 of the Negotiable Instruments Act. The Revision Petitioner
shall appear before the Chief Judicial Magistrate, Manjeri on 27-6-
2008 without any further notice.
Transmit back the entire lower court records forthwith.
V. RAMKUMAR,
(JUDGE)
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ani.