NINAN Vs. RUFUS OLIVERO

JUDGEMENT

(1.) Heard.

(2.) The order passed on Crl.R.P.No.70 of 1993 of the Fourth Additional Sessions Court, Ernakulam, is under challenge in this revision. Petitioner is the complainant in C.C.No.707 of 1992 on the file of the Chief Judicial Magistrate, Ernakulam, which is against the first respondent for an offence punishable under S.138 of the Negotiable Instruments Act, for short the Act. On the complaint, cognisance was taken of the offence against one Francis Olivero, S/o. Rufus Olivero, who was shown as the accused. Later by order passed on 2-1-1993, on M.P.No.28 of 1993 filed by the complainant revision petitioner, the name of the accused was corrected. Subsequently on a petition by the person who was impleaded as the accused, the question as to the maintainability of the complaint was considered as a preliminary point by the Chief Judicial Magistrate, who by order dated 23-8-1993 held the complaint was maintainable against him. But in the above revision, the order was set aside, the legality and propriety of which is under challenge in this revision.

(3.) Admittedly, the cheque in question was issued by the respondent, who is now shown as the accused. It was dishonoured when presented for encashment and that was followed by a notice to him intimating the dishonour with a demand for payment of the amount. The respondent received the notice but failed to reply and pay the amount. In the above circumstances, the petitioner had a completed cause of action for a complaint against him under S.142 of the Act for an offence under S.138. He filed the complaint also within the prescribed period, where he wrongly described the accused as Francis Olivero, son of Rufus Olivero, when in fact the description should have been in the reverse order. Upon noticing this mistake, he filed a petition for correction, which was allowed by the Chief Judicial Magistrate, who also held that the complaint was maintainable against the respondent. As stated already, the Additional Sessions Judge took a different view and held that the complaint is unsustainable.