5. Per contra , learned A.G.A for State submits that the applicants herein has not denied the issuance of cheque and after complying with all the formalities under Section 138 of the N.I. Act, the said complaint case was filed by the opposite party no.2 and the complaint is accompanied with an affidavit of the complainant. Therefore, the affidavit filed alongwith the complaint should be treated as his statement under Section 200 Cr.P.C. Once, the complaint is competently filed alongwith an affidavit it is the duty of the trial court to see whether a prima facie case been made out or not and thereupon it was required to summon the accused. Merely, because the complainant was not present, the complaint ought not to have been dismissed. The instant complaint was dismissed under Section 203 of Cr.P.C. and Section 203 Cr.P.C. mandates that once the complaint is filed it is the duty of the Magistrate to consider the statements of both the complainant and the witnesses and the result of the inquiry or the investigation, if any, conducted by the Magistrate under Section 202 Cr.P.C. and thereupon, if the Magistrate is of opinion that there is no sufficient ground for proceeding, he can dismiss the complaint. However, in the instant case without considering the material available on record, the Magistrate has dismissed the complaint, which was not permissible in law. Once, the complaint under Section 138 of the N.I. Act is filed alongwith an affidavit, it is the duty of the Magistrate to consider the material available and summon the accused if he is satisfied that a prima facie case is made out. Merely, on non presence of the complainant, the complaint cannot be disposed under the N.I. Act. Therefore, there is no error in the judgement and order dated 29.03.2024, passed by the learned Revisional Court. Therefore, learned A.G.A. submits that no interference is called for in the instant case.
