Research › Browse › Judgment

Madras High Court · body

1984 DIGILAW 21 (MAD)

S. Shyamsunder v. N. Natarajan

1984-01-13

K.M.NATARAJAN

body1984
Order This revision is directed against the order passed by the learned Sessions Judge, Coimbatore, in Crl. M.P.No. 47 of 1983, allowing the revision and setting aside the order of dismissal of the complaint passed by the learned Judicial First Class Magistrate, Coimbatore under Section 203, Criminal Procedure Code. Crl. M.P.No.6273 of 1983 is a petition filed by the revision petitioners to quash the proceedings in C.C. No. 618 of 1983 on the file of the Judicial First Class Magistrate, Coimbatore. 2. The brief facts of the case which are necessary for the disposal of the revision may be narrated as follows: “A private complaint preferred by the respondent against the petitioners-accused 1 to 4 for the offences punishable under Sections 120-B and 420, Indian Penal Code was taken cognizance by the Judicial First Class Magistrate, Coimbatore. The allegations in the complaint are that the second petitioner is the Managing Director of Textool Company, that petitioners 1, 3 and 4 are his son, son-in-law and wife respectively, that the complainant was employed as his Assistant to attend all his work on monthly salary of Rs.500/- that the respondent-complainant sold his car on 17.12.79 and was having the money and that petitioners 2 to 4 advised him to deposit the said amount in the Karur Vysya Bank, Siddiamber Ex Bazaar Street, Hyderabad, where the third petitioner was the Agent, in order to reach the target for the third accused in mobilising deposits from the customers. Accordingly, the respondent took a draft for Rs.25,000/- on 24.12.1979 from Karur Vysya Bank, Coimbatore, in the name of the first petitioner on the fraudulent representation that his son would be getting an employment in the said Bank, of the amount is deposited. When respondent went to the residence of the third petitioner at Secunderabad on 27.12.1979, his signatures were taken in stamp papers by the third petitioner at the instance of the first petitioner and he was informed that the amount was deposited in the joint account fixed deposit for 5 years from 27.12.1979. When respondent went to the residence of the third petitioner at Secunderabad on 27.12.1979, his signatures were taken in stamp papers by the third petitioner at the instance of the first petitioner and he was informed that the amount was deposited in the joint account fixed deposit for 5 years from 27.12.1979. Later, the first petitioner had drawn a sum of Rs.8,000/- in the first week of October, 1980, without the consent and knowledge of the respondent and when he questioned the petitioners at their residence, he was informed that it was only an adjustment to purchase coconut thope at Attimadai Village by one Palaniswamy Gounder and he could get back the entire amount with interest after 5 years.” 3. The respondent-complainant was stopped from employment on 14,1.1981. On enquiry, the respondent came to know that the fixed deposit account was closed in February, 1982 and the third petitioner also had been transferred to Trivandrum and thereafter he resigned the job. When the respondent contacted the petitioners, petitioners 2 and 4 assured him that the account would be settled soon and requested him not to launch any prosecution. The petitioners’ relatives and family counsel Messrs. R. Sambandam and Senthilnayagam also assured the respondent that he would get back the amount with interest and requested him not to go to Court, but ultimately they could not do anything in the matter. Thereupon, the respondent preferred a complaint to the police, but no action was taken by them. A similar complaint regarding the company share certificate preferred by the respondent, was not investigated by the police and therefore, a private complaint in C.C.No.393 of 1982 was filed by him and it was quashed by the High Court on 14.12.1982 at the instance of the petitioners. The notice issued by the respondent through his lawyer to the petitioners calling upon them to pay the amount was of no use. Hence, he preferred a private complaint against the petitioner. 4. The learned Judicial First Class Magistrate, Coimbatore, examined the respondent on oath and took cognizance of the complaint, but he postponed the issue of process against the petitioners and ordered enquiry under Section 202, Criminal Procedure Code, and directed the complainant-respondent to produce witnesses. Two witnesses were produced on 2.4.1983 and they were examined. 4. The learned Judicial First Class Magistrate, Coimbatore, examined the respondent on oath and took cognizance of the complaint, but he postponed the issue of process against the petitioners and ordered enquiry under Section 202, Criminal Procedure Code, and directed the complainant-respondent to produce witnesses. Two witnesses were produced on 2.4.1983 and they were examined. The case was adjourned to 5.4.1983 and on that day, the learned Magistrate dismissed the complaint under Section 203, Criminal Procedure Code for the reasons assigned in his judgment. 5. Aggrieved by the said order, the respondent herein preferred a revision before the Sessions Court, Coimbatore in Crl.M.P.No. 47 of 1983. The learned Sessions 3udge allowed the revision on the ground that the Magistrate was written, in the first instance, in the docket order on 2.4.1983 as “call on 5.4.1983 for further evidence” but later scored out the word “evidence” and instead wrote “proceedings” and it is not clear as to when the correction was made and hence there was judicial dishonesty on the part of the Magistrate and further the respondent was deprived of an opportunity of adducing further evidence in the matter. It is only on the above ground, the learned Sessions Judge set aside the order of the Magistrate and remitted the matter to him for fresh disposal. Aggrieved by the said order, the petitioners have preferred this revision and also the petition to quash the proceedings. 6. Mr. Kulandaivelu, learned counsel for the petitioner mainly contended that the allegations made in the complaint are patently false and inherently improbable and hence the said allegations together with the statement of the two witnesses recorded by the Magistrate and the sworn statement of the complainant, could not constitute any criminal action against the petitioners as they did not disclose the essential ingredients of the alleged offence. The learned counsel further submitted that the Magistrate has given undoubted discretion in the matter under Section 203, Criminal Procedure Code and since he found that there was no sufficient ground for proceeding with the matter, interference by the Sessions Court in revision was not proper. It was also argued that the learned Sessions Judge without even calling for remarks from the Magistrate about the corrections made by him, ought not to have jumped to the conclusion that there was judicial dishonesty on the part of the Magistrate and ordered fresh enquiry. 7. Mr. It was also argued that the learned Sessions Judge without even calling for remarks from the Magistrate about the corrections made by him, ought not to have jumped to the conclusion that there was judicial dishonesty on the part of the Magistrate and ordered fresh enquiry. 7. Mr. E.H.B. David, learned counsel for the respondent, relying on the decision reported in Ramaswami Nadar v. Viswanathan Ramaswami Nadar v. Viswanathan (1957)1 MLJ. 157 : (1957) MLJ. (Crl.) 69: (1957) Crl.L.J. 573, submitted that the Magistrate has to examine all the witnesses and if necessary by granting further time for producing witnesses. It was further contended that the petitioners instead of filing this revision, could as well face the enquiry before the trial Court. 8. Section 200 Criminal Procedure Code, which deals with the examination of witnesses, reads as follows: “A Magistrate taking cognizance of an offence or complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate”. 9. In the decision relied on by the learned counsel for the respondent in Ramaswami Nadar v. Viswanathan Ramaswami Nadar v. Viswanathan (1957)1 MLJ. 157 : (1957) MLJ. (Crl.) 69: (1957) Crl.L.J. 673, Somasundaram, J., hold that the said section is mandatory and it is obligatory on the part of the Magistrate to examine not only the complainant but also the witnesses who are present in Court. In the instant case, no witnesses were present on 5.3.1983, when the complainant was examined on oath and the Magistrate took cognizance of the offence. It was only after examining, the complainant on oath, the Magistrate has postponed the issue of process and ordered enquiry under Section 202, Criminal Procedure Code and directed the complainant to produce his witnesses on 2.4.1983. On that day, two witnesses alone were produced and examined. Hence, the decision relied on by the learned counsel for the respondent is not at all applicable to this case. 10. The next question to be considered is whether the Magistrate is bound to examine all the witnesses cited in the complaint under Section 202, Criminal Procedure Code before invoking the provisions of Section 203, Criminal Procedure Code. Hence, the decision relied on by the learned counsel for the respondent is not at all applicable to this case. 10. The next question to be considered is whether the Magistrate is bound to examine all the witnesses cited in the complaint under Section 202, Criminal Procedure Code before invoking the provisions of Section 203, Criminal Procedure Code. Section 202(2) Criminal Procedure Code reads as follows: “In an inquiry under sub- section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath, Section 203, Criminal Procedure Code runs as follows: “If, after considering the statements on oath (If any) of the complainant and of the witnesses and the result of the inquiry or investigation (if any) under Section 202, the Magistrate Is of opinion that there is no sufficient ground for proceeding he shall dismiss the complaint, and in every such case he shall dismiss the complaint, and in every such case he shall briefly record his reasons for so doing”. While considering the scope of the above two sections, the witnesses referred in Section 203 refers to the witnesses mentioned in Section 200, Criminal Procedure Code and as rightly observed in Dr. Naidu v. Janardhana Holla Dr. Naidu v. Janardhana Holla (1958) MLJ. (Crl.) 788: (1959) Crl.L.J. 620: A.I.R. 1959 Mys. 112, if that is not the interpretation, then all the witnesses cited in the complaint should be examined by the Magistrate before he makes up his mind to dismiss a private complaint and that would be placing the Magistrate in an intolerable position and a cantankerous complainant can cite as many witnesses as he chooses, then the Magistrate will have to examine all of them before dismissing the complaint. Even under Section 253, Criminal Procedure Code, the Magistrate is entitled to discharge the accused even before examining all the witnesses cited by the prosecution. Thus, it is clear that under Section 202, Criminal Procedure Code, the Magistrate is not bound to examine all witnesses before invoking the provisions of Section 203, Criminal Procedure Code. 11. The learned Magistrate, after considering the allegations made in the complaint as well as the sworn statement of the complainant and the two witnesses examined on his side, found that there was no sufficient ground for proceeding with the case and hence he dismissed the complaint under Section 203, Criminal Procedure Code. 11. The learned Magistrate, after considering the allegations made in the complaint as well as the sworn statement of the complainant and the two witnesses examined on his side, found that there was no sufficient ground for proceeding with the case and hence he dismissed the complaint under Section 203, Criminal Procedure Code. On a perusal of the materials on record, I am of the view that the dispute between the parties is essentially of a civil nature and it is not possible to fasten the criminal liability on. the petitioners, is also find much force in the contention of the revision petitioners that the respondent, who was removed from the employment by the petitioners, was aggrieved by the quashing of the similar complaint by this Court, has resorted to file this complaint only with a view to harass these petitioners. In this connection, it is relevant to point out the decision of the Supreme Court reported in Bhiku Ram v. Delhi Municipality Bhiku Ram v. Delhi Municipality (1977) F.A.J. 422: (1977) Crl L.J. 1995, where in it has been held that when there is no material at all for the processes to be issued against the person, the power to quash, for securing the ends of justice, must be deemed to be inherent in the High Court. When it is satisfied that a person is being prosecuted without there being any material, it will be failing in its duty rather abdicating its functions if it did not interfere to stop patent injustice calling for instant redress. In such a case, the High Court is under an imperative obligation to interfere to prevent harassment to which the accused person would be subject to if prompt redress is not afforded to him. Further, taking into consideration the allegation made in the complaint and the non-production of any records, I find that the further examination of the other witnesses would not in any way improve the case of the respondent. In the instant case, though the respondent came to know even in February, 1982, that the amount was withdrawn, he did not choose to file any complaint till 5.3.83. The prior case for the similar offence is in respect of the share certificates was quashed on 14.12.1982 and it was three months thereafter, this case has been instituted. In the instant case, though the respondent came to know even in February, 1982, that the amount was withdrawn, he did not choose to file any complaint till 5.3.83. The prior case for the similar offence is in respect of the share certificates was quashed on 14.12.1982 and it was three months thereafter, this case has been instituted. There was no piece of paper to prove the sale of the car or the entrustment of the cash with the petitioner. It is to be noted that the object of Section 200 Criminal Procedure Code is to see that the members of the public are not unnecessarily harassed for false and frivolous accusations levelled against them. Merely because, the said section envisages examination of the complainant and the witnesses on oath, it does not mean that it is obligatory on the part of the Magistrate to examine all the witnesses cited in the complainant to arrive at a decision under Section 203 Criminal Procedure Code. 12. The Learned Sessions Judge allowed the revision only on the ground that there was correction of the word “evidence” in the plea of “proceedings”. As stated supra, there is no obligation on the part of the Magistrate to give further opportunity to the complainant to produce all the witnesses and it is open to him to arrive at a conclusion even after examining some witnesses and hence he is well within his rights to order further proceedings even while adjourning the case from 2.4.1983 to 5.4.1983 by correcting the word “further evidence”. There was no basis for the Sessions Judge to come to the conclusion that it was done later and hence the was judicial dishonesty on the part of the Magistrate. The Magistrate is entitled to make necessary corrections at the time of passing orders. The learned Sessions Judge ought to have called for remarks from the Magistrate before ever arriving at a conclusion that the corrections were made subsequently and there was judicial dishonesty on the part of the Magistrate. The mere ipso dixit of the complainant that he came with witnesses on 5.4.83 would not automatically establish that there was judicial dishonesty on the part of the Magistrate. The learned Sessions Judge has not at all applied his mind to the merits of the case before setting aside the order of dismissal of the complaint under Section 203, Criminal Procedure Code. 13. The learned Sessions Judge has not at all applied his mind to the merits of the case before setting aside the order of dismissal of the complaint under Section 203, Criminal Procedure Code. 13. For the foregoing reasons, the order passed by the learned Sessions Judge is not at all sustainable and it is liable to be set aside. 14. In the result, the revision is allowed and the order passed by the learned Sessions Judge is set aside and the order passed by the Learned Magistrate dismissed the complaint of the respondent is restored. Since the main revision petition is allowed, no further orders are necessary in Crl.M.P. No. 6273 of 1983. R.S.R. ----- Revision Petition allowed.