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2001 DIGILAW 437 (KER)

Peter Mathew v. Betty John

2001-08-10

N.KRISHNAN NAIR

body2001
Judgment :- This is a petition filed under Section 482 of the Cr. P.C. to quash Annexure C order of the Judicial First Class Magistrate III, Thrissur in Cri. M.P. No. 2146/2001 in C.C. No. 770/99. The petitioner is the accused in C.C. No. 770/99 on the file of the J.F.C.M. III, Thrissur. The case arose on a complaint filed by the first respondent against the petitioner alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act. The Police has also registered crime No. 144/99 of the Peechi police station against the petitioner on the basis of a private complaint filed by the first respondent alleging the commission of the offences punishable under Sections 409 and 420 of the I.P.C. The petitioner preferred a petition before the lower Court under Section 210 of the Cr. P.C. for staying the proceedings in C.C. 770/1999. The lower Court dismissed the petition by a common order in Cri. M.C. No. 2148/2001 in C.C. 686/99 and Cri. M.P. No. 2146/2001 in C.C. No. 770/99. Aggrieved by the order in Cri. M.P. No. 2146/2001 the petitioner has come up with this petition. The learned counsel for the petitioner strongly contended that the finding of the Court below that Section 210 of the Cr. P.C. is not attracted in this case is clearly unsustainable. Relying on the decision of this Court reported in Joseph v. Joseph, 1981 Ker LT 902 : (1982 Cri LJ 595), the learned counsel contended that in construing Section 210(1) the word 'offence' cannot be given the restricted meaning. According to him, the subject matter of the enquiry in both the cases is the same. On the other hand, the learned counsel for the first respondent supported the order and urged that there is no ground for interference. He placed much reliance on the decision of the Supreme Court in State of Bihar v. Murad Ali Khan, AIR 1989 SC 1 : (1989 Cri LJ 1005). The question for consideration is whether the proceedings in C.C. 686/1999 are liable to be stayed under Section 210 of the Cr. P.C. Section 210 of the Cr. P.C. deals with the procedure to be followed by the Court when there is a complaint case and police investigation in respect of the same offence. The question for consideration is whether the proceedings in C.C. 686/1999 are liable to be stayed under Section 210 of the Cr. P.C. Section 210 of the Cr. P.C. deals with the procedure to be followed by the Court when there is a complaint case and police investigation in respect of the same offence. As per this section, when a complaint case is pending before a Magistrate and an investigation is pending before the police in relation to the very same offence which is the subject matter of the complaint case before him, the inquiry or trial whichever may be pending before the Magistrate shall be stayed and a report called for from the police. In this case, the complaint case pending before the Magistrate is the one filed by the first respondent herein against the petitioner alleging the commission of the offence punishable under Section 138 of the Negotiable Instruments Act. On the basis of the complaint filed by the first respondent, the police has also registered a crime against the petitioner alleging the commission of the offences punishable under Section 409 and 420 of the I.P.C. No doubt in Joseph v. Joseph, 1981 Ker LT 902 : (1982 Cri LJ 595) this Court has held that in construing Section 210(1) the word 'offence' cannot be given the restricted meaning. There, it is used to denote the occurrence, the incident, or the event. According to me, the decision reported in Joseph v. Joseph, 1981 Ker LT 902 : (1982 Cri LJ 595) is not applicable to the facts of this case. In that case, the Magistrate could have taken cognizance of the offences alleged in the complaint upon a police report. But, in this case, the offence alleged in the complaint is punishable under Section 138 of the Negotiable Instruments Act. The Magistrate can take cognizance of an offence under Section 138 of the Negotiable Instruments Act only on complaint filed by the payee or the holder in due course of the cheque. In this connection, it is relevant to note the decision of the Supreme Court in State of Bihar v. Murad Ali Khan, AIR 1989 SC 1 : (1989 Cri LJ 1005). In this connection, it is relevant to note the decision of the Supreme Court in State of Bihar v. Murad Ali Khan, AIR 1989 SC 1 : (1989 Cri LJ 1005). In that case it has been held by the Supreme Court that where cognizance can be taken only in one way and on the complaint of a particular statutory functionary, there is no scope or occasion for taking cognizance more than once and accordingly. Section 210 of the Cr. P.C. has no role to play. In this case, Section 210(1) of the Cr. P.C. would not be attracted since cognizance of the offence under Section 136 can only be taken on a complaint filed by the payee or the holder in due course of the cheque. The ingredients of an offence under Section 138 of the Negotiable Instruments Act are not part of the offences under Sections 409 and 420 of the I.P.C. For the reasons stated above, I am of the view that Section 210 of the Cr. P.C. is not attracted in this case. The Magistrate was fully justified in dismissing the petition. In the result, the petition is dismissed. Petition dismissed.