ORDER
T.M. Hassan Pillai, J.
1. The legality and propriety of the order passed by the learned Judicial First Class Magistrate, Cherthala is under challenge in this revision preferred by the revision petitioner herein, who filed a complaint against the respondent under Sections 138 and 142 of the Negotiable Instruments Act, 1881, (for short ‘the Act’), alleging that the respondent issued a cheque to him for Rs. 12,414.19 (the amount due to him towards the value of the goods purchased) and that cheque dated 26-7-1993 bearing No. 260772 was drawn on the Kottayam Branch of the Catholic Syrian Bank. It is further alleged in the complaint by the revision petitioner that that cheque, when presented by him for encashment, was bounced by the drawee bank on the ground of insufficiency of fund available in the account of the respondent maintained with the drawee bank. That cheque was dishonoured on 29-7-1993. Demanding the amount covered by the cheque, the revision petitioner sent a registered letter. It is alleged in the complaint that that letter was received by the respondent on 10-8-1993. It is also alleged in the complaint neither a reply was sent to the registered letter, nor any payment of the amount covered by the cheque was made so far by the respondent. The complaint was filed on the 15th day of September, 1993. Along with the complaint the petitioner herein produced the dishonoured cheque, memo received from the drawee bank with the remark that the cheque was returned unpaid on the ground of insufficiency of funds, notice demanding the amount covered by the cheque sent by the petitioner to the respondent and the receipt acknowledging receipt of that notice by the respondent. Thus, it is clear that necessary allegations to constitute an offence under Section 138 of the Act are made in the complaint.
2. The legal position is fairly well settled that at the time of taking cognizance of the offence the Court has to consider only the averments made in the complaint or in the charge sheet filed under Section 173, Cr.P.C. as the case may be. In State of Bihar v. Rajendra Agrawalla 1996 SCC (Cri) 628 : 1996 Cri LJ 1372 the Apex court has laid down that it is not open to the Court either to sift the evidence or to appreciate the evidence at that stage with reference to the materials and come to a conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court before issuing process, to record the evidence and on consideration of averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out (see Rashmi Kumar v. Mahesh Kumar Bhada 1997 SCC (Cri) 415).
3. The complaint was dismissed by the learned Magistrate on the ground that the complainant had given his sworn statement “irresponsibly and carelessly” and so no offence is made’ out. The learned Magistrate conveniently overlooked the well settled legal position that complaint has to be read along with the sworn statement of the complainant recorded under Section 200 of the Code of Criminal Procedure (for short ‘the Code’) and the complaint and sworn statement should not be read disjunctively, since they supplement and complement each other. The Magistrate will be well within his right to take cognizance of the offence if the allegation in the complaint and sworn statement together make out a case for the offence alleged. In Ammini Amma v. Sukumaran 1981 Ker LT 266 this Court laid down that complaint is also at any rate, one of the records to be looked into for the purpose of taking a decision under Sections 203 and 204 of the Code. This Court held thus:
5. The scheme and purport of Sections 200, 203 and 204 of the Code are not sufficient to show that the averments in the complaint are not to be looked into for the purpose of taking a decision either to dismiss a complaint under Section 203 or to issue process under Section 204 of the Code. This is made clear by the reference in Section 203 to the words “if any” occurring after the words “statement on oath of the complainant”. This makes it clear that complaint is also, at any rate, one of the records to be looked into for the purpose of taking a decision under Sections 203 and 204 of the Code. It cannot be said that Court can look into sworn statement only and not the complaint itself.
It is clear from the impugned order that the Magistrate has looked into only the sworn statement and not the complaint and dismissed the complaint under Section 203 of the Code.
4. The learned Magistrate ought to have looked into the complaint for the purpose of taking a decision Under Section 203 or 204 of the Code and looking into the complaint and the sworn statement it may be possible to hold unhesitatingly that the allegations in the complaint and sworn statement make out a case to take cognizance of an offence Under Section 138 of the Act and issue process. The learned Magistrate is not at all justified in dismissing the complaint for the unsound reasons given by him. In my view learned Magistrate “irresponsibly and carelessly” dismissed the complaint, ignoring the well settled position of law.
Therefore, this Crl. R.P. is allowed and the learned Magistrate is directed to restore the complaint to file and proceed further in accordance with law. Revision petitioner/complainant is directed to appear before the Court below on 28-2-2000.