Mukesh Jain vs Balachandar

C. Nagappan, J.—This revision is preferred challenging the legality and propriety of the order of dismissal u/s 203 of Criminal Procedure

Code passed by the learned Judicial Magistrate No.I, Mayiladuthurai on the complaint filed by the revision petitioner against the respondent u/s

138 of the Negotiable Instruments Act.

In the complaint, the revision petitioner has alleged that the respondent, in partial discharge of the debt obtained from him, issued a cheque in his

favour for a sum of Rs.6,50,000/- on 16.10.2002 and the said cheque bearing No.491923 was drawn on City Union Bank, Cuddalore and when

it was presented for collection through the petitioner'' s Bank on 10.3.2003, it was returned with a Memo dated 13.3.2003 stating ""Funds

Insufficient"" and the petitioner received intimation to that effect from his Banker on 25.3.2003 and he issued a notice to the respondent on

27.3.2003 demanding the amount covered by the cheque and the respondent sent a reply containing false allegations and hence he preferred the

complaint. Along with the complaint, the petitioner produced the dishonoured cheque, Banker''s intimation, a copy of demand notice, reply notice

and another document. From the above, it is clear that necessary allegations to constitute the offence u/s 138 of the Negotiable Instruments Act are

made in the complaint.

The complaint was dismissed by the learned Magistrate on the ground that the complainant in his sworn statement has not given particulars with

regard to date of cheque, date of its presentation, date of return and no prima facie case is made out for the offence u/s 138 of the Negotiable

Instruments Act and the complaint deserves to be dismissed as per Section 203 of Criminal Procedure Code.

The object of the enquiry in Section 202 of Criminal Procedure Code is to ascertain the truth or falsehood of the complaint and the Magistrate

making the enquiry has to do this only with reference to the intrinsic quality of the statements made before him at the enquiry which would naturally

mean the complaint itself and the statements made before him by the complainant and other persons examined by him. ( Chandra Deo Singh Vs.

Prokash Chandra Bose and Another, . This is reiterated by the Apex Court in the decision in RASHMI KUMAR (SMT) v. MAHESH KUMAR

BHADA 1997 SCC (Cri) 415 in the following lines:

Para 14. ......... It is fairly settled legal position 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 u/s 173, as the case may be. It was held in State of Bihar Vs. Rajendra Agrawalla, that it is not

open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the 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 the process, to record the

evidence, and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence

has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the

respondent to take further steps in the matters.

The complaint has to be read along with the sworn statement of the complainant recorded u/s 200 of Criminal Procedure Code and they should

not be read disjunctively, since they supplement and complement each other. 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 u/s 203 or to issue process u/s 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.

In the present case, the learned Magistrate has looked into only the sworn statement and not the complaint and has dismissed the complaint u/s

203 of Criminal Procedure Code overlooking the settled legal position. The allegations in the complaint and sworn statement, if read together,

make out a case to take cognizance of an offence u/s 138 of the Negotiable Instruments Act and issue process. Hence the impugned order

dismissing the complaint cannot be sustained.

In the case of dismissal of the complaint u/s 203 of Criminal Procedure Code, the person accused of the offence need not be given the right of

audience in revision proceedings, challenging the dismissal order. (SOMU alias SOMASUNDARAM AND 3 OTHERS v. STATE AND

ANOTHER 1985 L.W.(Crl.) 25 and SIVASANKA R v. SANTHAKUMARI 1991 (1) MWN (Cr.) 265 Mad.

Therefore, this revision is allowed and the impugned order is set aside and the learned Magistrate is directed to take the complaint on file and

proceed further in accordance with law. The revision petitioner/complainant is directed to appear before the Court below on 14th July, 2005.