RAMAKRISHNAN Vs. GOPALAN NAIR

JUDGEMENT

(1.) This petition is filed under S.482 of the Crl. P.C. challenging the order dated 4.10.2002 of the Sessions Judge, Palakkad in Crl. R.P.131/01 confirming the order of the Judicial First Class Magistrate, Pattambi in Cr. M.P. No.4886/99 in C.C. No.92/99. The case arose on a complaint filed by the 1st respondent herein against the petitioner alleging the commission of the offence punishable under S.138 of the Negotiable Instruments Act. The petitioner who is the accused in the case moved an application before the Magistrate to return the complaint on the ground that there is non compliance of R.24 of the Crl. Rules of Practice. The learned Magistrate dismissed the application mainly on the ground that the object of the petition is to delay the proceedings. Aggrieved by the order the petitioner preferred Crl. R.P. 131/01 before the Sessions Judge, Palakkad and the learned Sessions Judge by the impugned order dismissed the revision confirming the order of the Magistrate. Hence this petition.

(2.) The learned counsel for the petitioner strongly contended that the impugned orders are clearly illegal and cannot be sustained either in law or on facts. According to the learned counsel, R.24 of the Crl. Rules of Practice is mandatory and therefore, the lower courts should have held that the complaint is liable to be returned to the complainant. On going through the impugned orders I see no reason to interfere with the orders. It is seen that the complaint was filed before the Magistrate as early as 27.5.1999 and the petitioner entered appearance before the Magistrate on 19.4.2000. Even if it is assumed that there is violation of the provisions of R.24 of the Crl. Rules of Practice, the Magistrate is not competent to return the complaint since he had already taken cognizance of the offence. The Magistrate has no jurisdiction to review the order passed by him. Therefore, the learned Magistrate was fully justified in dismissing the application filed by the petitioner. There is also no infirmity in the order passed by the learned Sessions Judge.

(3.) The learned counsel for the petitioner placed strong reliance on the decision of the Supreme Court reported in Dinesh Dutt Joshi v. State of Rajasthan ( 2001 (8) SCC 570 ). No doubt, in the decision referred to by the learned counsel, the Supreme Court has held that S.482 of the Crl. P.C. has been embodied to cover the lacunae which are some times found in the procedural law. But, in the very same decision the Supreme Court has held that this extra ordinary power is to be used in extra ordinary cases. In this case the prayer in the petition is not to cover the lacunae found in the procedural law. Therefore, the decision relied upon by the learned counsel is not applicable to the facts of this case. Here the grievance of the petitioner is that the complaint filed by the 1st respondent herein is not in conformity with the provisions of R.24 of the Crl. Rules of Practice. Both the Courts below have found that since cognizance of the offence had already been taken, the application of the petitioner to return the complaint cannot be entertained. I see no reason to interfere with the orders of the lower courts in the exercise of the extra ordinary jurisdiction under S.482 of the Crl. P.C. The petition is dismissed.