The court clarified that the magistrate must assess if there are sufficient grounds to issue a summons without requiring a full trial at that stage.

Sampath B. Abayakoon, J.

This is an application by the plaintiff-petitioner-petitioner (hereinafter referred to as the petitioner) seeking to invoke the revisionary jurisdiction granted to this Court in terms of Article 138 of The Constitution.

This is a matter where the petitioner has instituted an action before the Magistrate’s Court of Colombo by way of a private plaint filed in terms of section 136(1)(a) of the Code of Criminal Procedure Act , naming the accused-respondent- respondent (hereinafter referred to as the respondent) as the accused of the action.

The said action has been filed on the basis that the respondent committed an offence punishable in terms of section 25(1)(b) of the Debt Recovery (Special Provisions) Act (hereinafter referred to as the Act).

The complaint had been to the effect that the cheque issued by the company where the respondent was a director was dishonoured by the relevant bank and it amounts to an offence as stated above. The petitioner has filed an affidavit as well as several documents, including the cheque clearing information issued by the relevant bank, and a document to show that the respondent is a director of the company, which issued the cheque to substantiate the private plaint filed by him.

When this matter was supported for summons on the respondent, the learned Magistrate of Colombo by the order dated 03-03-2021 has refused to issue summons to the respondent.

Being aggrieved by the said order, the petitioner has filed an application in revision in terms of Article 154P of The Constitution before the High Court of the Western Province Holden in Colombo.

After notice being issued in that regard to the respondent, the matter has been set for argument. It had been later agreed to conclude the matter by way of written submissions filed by the parties.

The learned High Court Judge of his order dated 11-07-2023 has dismissed the revision application on the basis that he has no reason to interfere with the order of the learned Magistrate of Colombo.

The petitioner being aggrieved of the said judgment preferred this application in revision seeking redress. This Court after having considered the relevant facts and the circumstances, decided to issue notice on the respondents mentioned, and the parties were allowed to file their objections and counter objections in that regard.

At the hearing of this application, this Court heard the submissions of the learned Counsel for the petitioner as well as that of the learned Counsel for the accused-respondent. Although this was a matter where the dispute had been between two private parties, since the Hon. Attorney General has been named as the respondent-respondent before this Court, the Hon. Attorney General was also represented at the hearing of this matter.

It was the submission of the learned Counsel for the petitioner that the action under the Debt Recovery (Special Provisions) Act law was correctly filed before the Magistrate’s Court of Colombo. It was his complaint that when this matter was supported for notice, submissions were made justifying the issue of summons. However, the learned Magistrate of Colombo by her impugned order has refused to issue summons on a wrong premise by looking for evidence that should have been considered at a properly conducted trial.

It was his position that the learned High Court Judge of the Provincial High Court of the Western Province Holden in Colombo too was erred when the learned High Court Judge went on to consider the required standard of proof and the evidence that should have been led in a properly conducted trial to determine that the petitioner has failed to adduce sufficient evidence for the learned Magistrate to issue summons to the respondent. He moved for the setting aside of both the impugned judgment and the order on the basis that they are contrary to law and that there are exceptional circumstances before the Court to exercise the revisionary jurisdiction of the Court.

The learned Counsel for the respo