@JUDGMENTTAG-ORDER
K.T. Thomas, J.@mdashThis revision is at the instance of a complainant whose complaint was dismissed by a judicial magistrate of first class after issuing process to the accused. Learned magistrate has presumably acted under the ration laid down in K.M. Mathew v. State of Kerala 1992 (1) KLT 1.
2. The complaint was filed on the main allegation that the accused committed the offence u/s 138 of the Negotiable Instruments Act, 1881. Learned magistrate took cognizance of the offence and issued notice to the accused. After entering appearance accused raised a contention that the complaint is liable to be dismissed since no offence was made out in the complaint. Learned magistrate accepted the contention by holding that there is no averment in the complaint that cheque was bounced due to insufficiency of amount in the account.
3. Learned Counsel for the complainant/petitioner contended that if the ingredients necessary to constitute the offence can be made out from the complaint in spite of absence of explicit averments in that regard, the court would be justified in taking cognizance of the offence. He cited the observation of the court in Iqbal v. Uthaman 1993 (2) KLT 237 that a meticulous scrutiny of the complaint may not be warranted at the initial stage to ascertain whether the elements of the offence have expressly been categorised in the complaint, "It is enough that a pragmatic assessment is made after perusing the complaint to decide whether the complaint discloses the offence u/s 138 of the Act."
4. Learned Counsel pointed out that the ration in Iqbal''s case has since been approved by a Division Bench in Mohammed Rasheed v. State 1993 (2) KLT. 1027. Manoharan, J. who rendered the judgment of the bench has concluded that "the law is correctly laid down in the decision in Iqbal v. Uthaman 1993 (2) KLT 237."
5. In this context it may be pointed out the Mohammed, J. who concurred with the conclusion has however recorded his own reasons for reaching the '' same conclusions. But in the penultimate paragraph of the concurring judgment delivered by Mohammed, J. the following observations have been made:
Unless the complaint discloses the facts which constitute the act or omission of the defaulting drawer, the magistrate cannot take cognizance of the offence inasmuch as such facts by nature are fundamental concerning the jurisdiction of the court. These facts cannot be gathered by inference or by necessary implication from the allegations contained in the complaint. The facts must be explicitly expressed for jurisdiction cannot be decided on inference or implication.
No doubt the above observations could be used for supporting a contention that unless there are express or explicit averments in the complaint the court cannot make out essential ingredient of the offence from implications deduced from the complaint. But the above quoted observation is not the ration of the bench decision. On the contrary the division bench has stated clearly (though the judgment of Manoharan, J.) that even if there is no express or explicit averment in the complaint court would be justified in taking cognizance of the offence if the ingredients can be deduced or discerned from the implications or inferences from the complaint. As Mohammed, J. has concurred with the said conclusion the observations made by him and quoted above cannot be regarded as the legal principle enunciated by the bench. With great respect, I may say that the said observations have been made per incurium (vide
6. In the instant case the complainant has specifically stated that the cheque was dishonoured as payment was stopped by the drawer. Nowhere did the complainant say that the cheque was dishonoured due to want of sufficient amount in the account. Learned Counsel made a bid to show that the ingredients can be discerned from implications in the complaint. I find it extremely difficult to deduce from the complaint a case of dishonour of the cheque due of want to amount in the account. Averments in the complaint are totally bereft of such a case.
For the aforesaid reasons, I decline to interfere. This revision is dismissed in limine.
