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2007 DIGILAW 260 (KER)

Alexander Varghese v. State of Kerala

2007-04-11

K.R.UDAYABHANU

body2007
Judgment :- The petitioner, who is the complainant in C.M.P. No. 533/2006, the private complaint filed alleging offences under Ss.420 and 405 of the Indian Penal Code, has sought for setting aside the order of the Court below dismissing the complaint at the threshold, on the ground that the complaint is filed by the Power of Attorney Bolder on behalf of the aggrieved. It is submitted that the allegation is that the accused committed cheating with respect to a sum of Rs.25,50,000/-, the amount paid with respect to the construction of a residential building for one Joy Chacko who is working in the United States. The amount was paid to the accused who misrepresented himself as an engineer who is running a construction firm. The above Joy Chacko is the 1st witness to the complainant. The alleged victim of cheating is the cousin of the Power of Attorney holder. It is submitted that the Court below has erred in dismissing the complaint i.e., Annexure Al, filed under Ss.190 r/w S.200 Cr.P.C. It is the settled law that except certain specified offences mentioned in Ss. 198, 198A and 199 Cr.P.C the rest can be brought to the notice of the Court by any person. It is further pointed out in the instant case that the petitioner himself is the complainant and the aggrieved is arrayed as the 1st witness. The counsel has also relied on the term "complaint" as defined in S.2(d) of the Cr.P.C. as any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code, that some person, whether known or unknown, has committed an offence, but does not include a police report". 2. The term complainant is not defined in the Code. The above indicate that it is not mandatory that the complainant himself must file a complaint. It is also pointed out that when the Magistrate takes cognizance of a matter, he is taking cognizance of the offence and not the offender and what the magistrate has to consider is whether the complaint discloses an offence or not. It is also pointed out that the compliance of Chapter XV of the Code arises only after taking cognizance and that the apprehension whether the complainant could comply with the provisions of Chapter XV is not a ground to dismiss a complaint. It is also pointed out that the compliance of Chapter XV of the Code arises only after taking cognizance and that the apprehension whether the complainant could comply with the provisions of Chapter XV is not a ground to dismiss a complaint. The observations of the Court below that the examination of the aggrieved person is necessary to proceed is incorrect. What is contemplated under S.200 is the examination of the complainant and the witnesses present only. The Court below has earlier dismissed the complaint filed by the aggrieved person Shri. Joy Chacko through the Power of Attorney holder vide order in C.M.P. No.6228/2005, on the ground that the Power of Attorney holder is not competent to file the complaint. Thereafter, the complaint filed by the Power of Attorney Holder was also dismissed without leaving any remedy to the person who was cheated. 3. It is the allegation that the entire construction has been done not as per the instructions and plan etc. and using substandard materials and that the aggrieved was trapped on account of the misrepresentation of the accused that he is a qualified engineer and is running a construction firm, which was found to be false. The details of the payments and the documentary evidence as to the payments received by the accused are also produced along with the complaint vide Annexure A2 series. In Annexure A3 order it is mentioned that the present Power of Attorney holder had filed another complaint as C.M.P. No. 6228/2005 as the Power of Attorney holder of Shri. Joy Chacko and the same was dismissed. The second complaint, that is an instant one has been filed by the Power of Attorney holder himself as the complainant and the real aggrieved is cited as the 1st witness and the same cannot be entertained by virtue of provisions under 5.190 r/w 200 Cr.P.C. The Court has noted that as per S.190 r/w 200 Cr.P.C only the real aggrieved person can file the complaint before the Court and on presentation of the complaint, the complainant has to be examined on oath and the witnesses present are also to be examined on oath. According to the Court below what is contemplated under S.190 is that the person really aggrieved can only file the complaint and the person cannot be substituted by another person and that what is required is the physical examination of the complainant under S.200 Cr.P.C. According to the Court below, the court taking cognizance has to form a subjective opinion in an objective manner and the same is possible only by physical examination of the complainant. Annexure 4 is the order dismissing C.M.P.No.6225/2004 filed by the present complainant as Power of Attorney holder representing Shri. Joy Chacko who was mentioned as the complainant. In the above order also the Court relied on the same reasoning that as per S.202(1)(b) Cr.P.C. examination of the complainant and witnesses present on oath are mandatory. 4. I find that the findings of the Courts below cannot be sustained in view of the settled law on the point vide the decisions brought to the notice of this Court by counsel for the petitioner. This Court has held in Thanoo Pillai v. Raghavan Pillai (1962 KIT 639) that the general policy is that a complaint need not necessarily be made by the person injured, but may be filed by any person aware of the offence and the only exceptions in this rule are to be found in Ss. 195 to I99 of the Cr.P.C. wherein certain offences are stated to be complainable only by specified persons and that the Courts have no power to add to the list in the above cases. The Court was dealing with the complaint of the father of the aggrieved who had alleged that the accused therein who are lessees of the properties owned by his sons committed theft of an Anjily tree costing about Rs.150 from the property. This Court therein quoted the decisions of Prayag Singh v. Mrs. Morgan (XXXIII Calcutta Law Journal 118) and Basirulla v. Aandulla (AIR 1922 Cal.639) and the decision of the Bombay High Court in Imperatric v. Kesavlal Jekrishna Ors. (ILR XXI Bom.536) and Gannu Pillai Appavu Pillai v. Ali Unlined (XIV TLJ 587). This Court therein quoted the decisions of Prayag Singh v. Mrs. Morgan (XXXIII Calcutta Law Journal 118) and Basirulla v. Aandulla (AIR 1922 Cal.639) and the decision of the Bombay High Court in Imperatric v. Kesavlal Jekrishna Ors. (ILR XXI Bom.536) and Gannu Pillai Appavu Pillai v. Ali Unlined (XIV TLJ 587). The Bombay High Court while dealing with the complaint for the offence under S.441 I.P.C. observed that "any person in possession" in S.441 of the Indian Penal Code does not mean only "a complainant in possession", there being no authority for taking the offence of mischief and criminal tresspass out of the general rule which allows any person to complain of a criminal act. 5. The Supreme Court in Viswa Mitter v. O.P. Poddar (1983 (4) SCC 701) when the Court was dealing with the complaint under Trade and Merchandise Marks Act 1958, has held that on a combined reading of Ss.4(2) and 190 Cr.P.C., it is clear that anyone can set the criminal law in motion by filing a complaint of facts constituting an offence before a Magistrate entitled to take cognizance under S.190 and no Court can decline to take cognizance on the sole ground that the complainant was not competent to file the complaint. But where any special statute prescribes offences and makes any special provision for taking cognizance of such offences under the statute, the complainant, requesting the Magistrate to take cognizance of the offence must satisfy the eligibility criteria prescribed by the statute. It was also held in the above case that statute did not prescribe any particular qualification. It was held that the Magistrate erred in dismissing the complaint at the threshold, as even otherwise in the absence of a specific qualification, if the person complaining has a subsisting interest in the protection of the registered trade mark, his complaint cannot be rejected on the ground that he had no cause of action nor sufficient subsisting interest to file the complaint. The above was the complaint filed by a dealer and duly constituted power of attorney. The Court held that anyone can put the criminal law in motion unless there is a specific provision to the contrary. The exemptions noted are Ss.195, 198, 199 Cr.P.C. S.20 of the PFA Act and S.621 of the Companies Act. The above was the complaint filed by a dealer and duly constituted power of attorney. The Court held that anyone can put the criminal law in motion unless there is a specific provision to the contrary. The exemptions noted are Ss.195, 198, 199 Cr.P.C. S.20 of the PFA Act and S.621 of the Companies Act. It was held that no Court can throw out the complaint or decline to take the cognizance on the sole ground that the complainant was not competent to file the complaint. 6. In the circumstances, I find that the order of the Court below in dismissing C.M. P.No.6228/2005 filed earlier by the power of attorney holder on behalf of Joy Chacko as well as the dismissal of the complaint instituted by the power of attorney holder at present are erroneous. The Court below is directed to record the sworn statement of the complainant and take the matter into file, issue summons to the accused and dispose of the matter on merits. The petitioner/complainant would appear before the Court below on 30/4/2007. The Crl.M.C. is disposed of accordingly.