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Madras High Court · body

1993 DIGILAW 521 (MAD)

N. Bose v. Nirmala

1993-09-07

ARUMUGHAM

body1993
Judgment : Invoking the inherent powers of this Court under Sec.482 of the Code of Criminal Procedure, the petitioner in both the above cases, who was the accused in C.C.No.103 of 1990 and C.C. 104 of 90 on the file of the Judicial Magistrate No.III, Coimbatore, faced the trial for the offence punishable under Sec.138 read with 142 of the Negotiable Instruments Act, hereinafter referred to as Act 16 of 1988, in private complaints filed by the respondents herein respectively under Sec.200 of the Code of Criminal Procedure, and during the course of the trial of the said cases. Petitions under Sec.190 of the Code of Criminal Procedure on his behalf praying the learned Magistrate to take cognizance of the offence committed by one of the witnesses cited in the said private complaints filed by the respondent for the offence punishable under Sec. 420 of the Indian Penal Code, which were since rejected by the learned trial Magistrate, the petitioner has canvassed the said impugned orders, by way of seeking direction to the learned trial Magistrate, to take cognizance of the offence committed by the said witness Sundaram Chettiar and another in the said cases and hence, the present petitions. 2. Brief facts, as culled out from the returned petitions, filed on behalf of the petitioner, filed under Sec.190 of the Code of Criminal Procedure Code, which led to the filing of the above petitions, are stated, as follows: Both the respondents herein, filed private complaints against the petitioner for the alleged offence punishable under Sec.138 read with 142 of the Negotiable Instruments Act, which were taken on the file by the learned Judicial Magistrate No.III, Coimbatore, as C.C.Nos.103 and 104 of 1990 respectively. It appears from the averments, that the respondents had initiated the said complaints after giving registered notice to the petitioner but however after he replied the same by repudiating every one of the allegations made therein and that in which, the petitioner seems to have denied the very issuance of the cheques in question referred to in the said registered notice by narrating all the facts, according to him, which led to his being cheated by the respondents herein and their father by name Sundaram Chettiar and his Accountant and that therefore, a commission of an offence punishable under Sec.420 of the Indian Penal Code, was alleged against the father of the respondents herein in both the cases. By relying upon the xerox copy of the notice and reply notice above referred, it appears that the petitioner has filed petitions under Sec.190 of the Code of Criminal Procedure, in both the cases before the learned trial Magistrate to treat the said petitions as complaints under Sec.200, Crl.P.C. and take cognizance of the offence as provided under Sec.190 of the Code of Criminal Procedure and enquire the same by issuing process to Sundaram Chettiar and his Accountant., However, the said petitions were returned by the learned Magistrate for compliance of the maintainability. But it was represented again, by stating but separate complaints were not at all necessary and that the Court has got ample powers to take cognizance of the offence committed by the respondents complainants and it was represented for taking cognizance and rendering justice. However, the same was not accepted by the court below. 3. The learned Magistrate, while returning the petition filed in C.C.No.103 of 1990 on the file of his court, has passed the following order: "Sec.190, Crl.P.C. reveals that the initiation of Proceedings for taking cognizance of offence by the Magistrate. The Complainant is required to file a complaint in correct section of law in accordance with the Crl.P.C. Sec.190, Crl.P.C. alone cannot stand as a Private Complaint as per law. Moreover, the allegation made in the petition is connected with the case in C.C.No.103 of 1990 on the file of this Court and the case is under trial. The Complainant is required to file a complaint in correct section of law in accordance with the Crl.P.C. Sec.190, Crl.P.C. alone cannot stand as a Private Complaint as per law. Moreover, the allegation made in the petition is connected with the case in C.C.No.103 of 1990 on the file of this Court and the case is under trial. Under this circumstance, how the ingredients of offence under Sec.420, I.P.C. is fulfilled is to be stated." Similar order has been passed in the petition filed under Sec.190 Crl.P.C. in C.C.No.104 of 1990 on the file of the trial Magistrate. These orders have been passed by the Magistrate on 23. 1993 and these made the petitioner, to invoke the inherent jurisdiction of this Court, as above referred. 4. Mr.C. Deivasigamani, learned counsel appearing for the petitioner, while seeking the direction as prayed for, contends, that though the cognizance of the offence under Sec.138 read with 142 of the Negotiable Instruments Act, has been taken by the learned trial Magistrate in the private complaints filed by the respondents herein under Sec. 200, Crl.P.C. and process have been issued by assigning C.C.Nos.103 and 104 of 1990, there is virtually no bar for the learned Magistrate to take cognizance of an offence committed by one of the witnesses cited in the complaints filed on behalf of the complainants, namely, the respondents herein, for the offence punishable under Sec.420, I.P.C., an evident from the registered notice and the reply and that therefore, the impugned orders of return passed by the learned trial Magistrate are not correct and causes every prejudice necessitating the directions of this Court as prayed for. To substantiate his contention, learned counsel pointed out, that though the witness by name Sundaram Chettiar, father of the complainants/respondents in both the cases, was cited as a witness, has not been examined on behalf of the respondents. Basing reliance upon the registered notice and the repudiation of the averments made therein by means of a reply issued on behalf of his client, namely, the petitioner herein, learned counsel, wanted the learned Judicial Magistrate to take cognizance of an offence punishable under Sec.420 of the Indian Penal Code during the trial in cases filed as private complaints by the respondents herein. 5. 5. To appreciate the legal competency of the above petitions, it has become necessary for me to advert to Sec.190 of the Code of Criminal Procedure, which runs as follows: "Cognizance of offence by Magistrate: .(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under Sub-sec.(2) may take cognizance of any offence- .(a) upon receiving a complaint of facts which constitute such offence; .(b) upon a police report of such facts; .(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. .(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under Sub-sec(1) of such offences as are within his competence to inquire into or try". A plain reading of the above section of law makes it clear that any Magistrate of the First Class or of the Second Class specially empowered in this behalf, as provided in Sub-clause (2) can take the cognizance of any offence upon three conditions which are: i. upon receiving a complaint of facts constituting the offence; ii. upon a Police report of such facts; iii. upon information received from any person other than a Police Officer or upon his own knowledge about such offence. It thus clinches the matter that the cognizance of any offence cannot be taken except upon the three modes above referred. The first two modes and circumstances enumerated above, are out of points for the present cases, for the reasoning that the present petitioner in both the cases has not come forward with any written complaint or complaint of facts detailing the nature of offence and as to when and in what mode the same has been committed, so as to make the court to take cognizance and that secondly, no Police officer is involved in these cases. For the above said reasons, learned Magistrate cannot take cognizance of the claimed offence, one under Sec.420 of the Indian Penal Code, as contended by the learned counsel for the petitioner. For the above said reasons, learned Magistrate cannot take cognizance of the claimed offence, one under Sec.420 of the Indian Penal Code, as contended by the learned counsel for the petitioner. But, however, with regard to the third mode provided to in clause (c) of Sec.190(1), I have no other alternative except to reject the contention of the learned counsel for the petitioner, for the simple reason that in the private complaints filed on behalf of the respondents against the petitioner in both the cases for the offence punishable under Sec.138 read with 112 of the Negotiable Instruments Act, after having taken cognizance of the same by the learned Magistrate and during the trial of the same, the cognizance of an offence under Sec.420, I.P.C. against one of the witnesses cited in the said complaints cannot be taken by any court of law. The simple reason is that if that procedure is followed, in my considered view, not only the Code has not provided for the same but also, it would create a misjoinder of causes and charges and that even so, the contents of the notices and the reply notice referred to by the learned counsel, has not complied with any of the modes provided in Sec.190 of the Code. 6. In Mehra v. Emperor, 25 Crl.L.J. 181, a Full Bench of the Sind Judicial Commissioner’s Court, has held as follows: "Under Sec.190 of the Criminal Procedure Code. A Magistrate takes cognizance of an offence and not of the offender. Taking cognizance of a case does not involve any formal action, or action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence. The fact that the Police in a report submitted underSec.l73of the Criminal Procedure Code have not mentioned all the parties concerned in the offence which has been sent up for enquiry, does not debar a Magistrate from taking action against persons other than those mentioned in the Police report. Once a Magistrate has taken cognizance of a case and proceeds to deal with the evidence brought before him, it is his duty to see that justice is done with regard to any other person that may be suspected of being concerned in the offence. His action against such persons would fall under Sec.190, clause (b) and not clause (c) of the Code". His action against such persons would fall under Sec.190, clause (b) and not clause (c) of the Code". In this regard, the Supreme Court in Raghubans Dubey v. State of Bihar, A.I.R. 1967 S.C. 1157 at 1169: 1967 M.L.J. (Crl.) 750: (1967) 2 S.C.J. 427: (1967) 2 S.C.R. 423 : (1967) 2 An.L.T. 23: 1967 S.C.D. 455: (1967) 1 S.C.W.R. 465, has observed as follows: "It seems to us that Sec.207(a) refers back to Sec.l90(1)(b): in other words, the police report mentioned in Sec.207(a) is the report mentioned in Sec.190 (1)(a), and once cognizance is taken under Sec.l90(1)(b), a proceeding is instituted within Sec.207 (a). Hidayatul-lah, J. Speaking for the Court, while considering the interpretation of Sec.251-A of the Code of Criminal Procedure in Pravin Chandra Mody v. State of A.P., (1965)1 S.C.R. 269 : A.I.R. 1965 S.C. 1185, observed as follows: "In our judgment the meaning which is sought to be given to a ‘police report’ is not correct. In Sec.190, a distinction is made between the classes of persons who can start a criminal prosecution. Under the three clauses of Sec.190 (1), to which we have already referred, criminal prosecution can be initiated (i) by a police officer by a report in writing, (ii) upon information received from any person other than a police officer or upon the Magistrate’s own knowledge or suspicion, and (iii) upon receiving a complaint of facts. If the report in this case falls within (i) above, then the procedure under Sec251-A Criminal Procedure Code, must be followed. If it falls in (ii) or (iii) then the procedure under Sec.252, Criminal Procedure Code, must be followed. We are thus concerned to find out whether the report of the police officer in writing in this case can be described as a "complaint of facts" or as "information received from any person other than a police officer. The term "complaint" in this connection has been defined by the Code of Criminal Procedure and it "means the allegation made orally or in writing to a magistrate, with a view to his taking action under the Code, that some person, whether known or unknown, has committed an offence, but it does not include the report of a police officer". 7. 7. Thus, the Supreme Court, has clearly enunciated the limit of power vested with a magistrate, to take cognizance of an offence by defining under what circumstances and in which mode the cognizance can be taken. Further the word "complaint" has been defined by the Supreme Court as defined in the Code of Criminal Procedure. Importing the above legal rationable declared by the Apex Court to the facts of the instant cases, it is seen; however, that upon the complaints given by the respondents herein, the learned Judicial Magistrate No.III, Coimbatore has taken the cognizance of the offence against the petitioner herein, under Sec. 138 read with 142 of the Negotiable Instruments Act, and that consequently, he proceeded further with the trial in accordance with the procedural law. Therefore, the issue to be established and proved before the Court below was entirely upon the complainants, namely the respondents herein, for the offence alleged against the petitioner, who is the accused in both the cases. It is also worth while to note that to substantiate the offence, the notice and reply notice exchanged between the respondents and the petitioner herein prior to the filing of the complaints, have necessarily to be relied on by the learned Magistrate. Under such circumstances, nowhere in the Code of Criminal Procedure or in any other law it has been stated that in a trial initiated by the respondent for the offence if any committed by any one of the witnesses cited on behalf of the complainant, the same can be taken cognizance of and tried out in the same trial and this is quite unknown to the Procedural Law. Thus, having considered the very contention made on behalf of the petitioner, in the light of the above legal ratios, I do not find any merit in both the petitions and they deserve to be dismissed even at the stage of admission itself. Accordingly, both petitions are dismissed.