Once a complaint is filed, it becomes the property of the Court and cannot be returned under any circumstance. The Magistrate must follow the procedure prescribed under Section 202 Cr.P.C. to consider the complaint and proceed further in accordance with law.

The criminal original petition is filed seeking to set aside the order of the XVIII Metropolitan Magistrate, Saidapet, dated 27. 2008.

2. The brief facts which are necessary for the disposal of the above criminal original petition are set out hereunder:

The case of the petitioner is that a cheque which was given as security was not returned even after the repayment of the entire loan amount with interest but was misused which resulted in the cheque being returned on its deposit. Consequently, a criminal complaint under Section 138 of the Negotiable Instruments Act was instituted against the petitioner; in such circumstance, the petitioner filed a complaint before the learned XVIII Metropolitan Magistrate, Saidapet, Chennai against the respondent herein for alleged offences under Sections 406 and 420 I.P.C. But the said complaint was returned by the learned Magistrate on 27. 2008 with the following endorsement:

"On perusal of the complaint, it is seen that already a complaint hs been filed by the proposed accused before the J.M.No.I, Myladuthurai in C.C. No. 144/08 under Section 138 of the N.I. Act before filing this instant complaint by the Casim Fareed Jaffordeen through his P.O.A. When there is criminal complaint is pending for disposal before the competent court, entertaining complaint involving relatively same set of facts may amounts abuse of process of law though it is different section of IPC. The copy of S.C. order reported in 2008 (1) MLJ Crl 721 (SC) cited by the complainant also not applies to the facts and circumstances explained in the instant complaint. Specifically the order of Honble S.C. deals with case where a police complaint given by the appellant for misuse of cheque and quashing of the FIR by Honble HC. However the instant case no such police complaint appears to be given by the complainant regarding the alleged misuse of cheque well in advance. In view of the above the complaint is returned as not maintainable."

The said return of the complaint filed by the petitioner is being challenged in this criminal original petition.

3. Learned counsel for the petitioner submitted that the learned Magistrate has failed to properly consider the law laid down by the Apex Court in the case reported in 2008 1 MLJ (Crl) 721 (SC) (SURYALAKSHMI COTTON MILLS LTD. V. RAJVIR INDUSTRIES LIMITED AND OTHERS) wherein in paragraph 24, it was held as hereunder:

"24. However, a case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed."

Placing reliance on the aforesaid decision, the learned counsel submitted even if a complaint under Section 138 of the Negotiable Instruments Act is filed, an independent complaint for criminal breach of trust would be maintainable, in addition to the very same defence available to the petitioner, which he would take in the case filed against him under Section 138 of the Negotiable Instruments Act.

4. Learned counsel for the petitioner also relied on the decision of the Division Bench of this Court reported in 2000 -1-L.W. (Crl.) 460 (A. VINAYAGAM V. DR. SUBASH CHANDRAN) wherein the Division Bench, in paragraphs 14, 15 and 22, has observed as hereunder:

"14. The combined reading of Section 2(d) of the Code of Criminal Procedure, which defines "complaint and Rules 28 and III of the Criminal Rule of practice would suggest that, all that the complainant