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2008 DIGILAW 3743 (MAD)

W. Apollos David v. P. Sivakumar & Others

2008-10-14

K.MOHAN RAM

body2008
Judgment :- The above revision has been filed by the complainant against the dismissal of C.C.No.119 of 2007 by the Chief Judicial Magistrate, Chengalpattu. 2. The petitioner filed a private complaint under Section 200 Cr.P.C. in respect of the alleged offences under Sections 341, 385, 406, 420, 468, 470, 471, 506(ii) r/w 34 I.P.C. against the respondents herein before the Judicial Magistrate, Alandur on 12. 2007. .3. In the complaint, after elaborately setting out the details relating to the money transactions between the complainant and the second respondent about the deal between the first and second respondents regarding getting of a medical seat in Annamalai University, the complainant has levelled various allegations against the respondents herein and the sum and substance of those allegations are to the following effect:- ."On 2. 2007 the 1st accused lodged a complaint before the Commissioner of Police, Chennai against the petitioner alleging that he had cheated him. The complaint was enquired into by 3rd accused. The 1st accused using his political and police influence, threatened the complainant that he would be detained under the Goondas Act and without enquiring properly into the complaint, the 1st accused with the help of 3rd accused extorted 3 post dated cheques dated 12. 2007 for various amounts totalling Rs.12,50,000/-. The complainant was also subjected to coercion by the 3rd accused and was forced deliver the cheques. The complainant had already paid Rs.8,00,000/-to the 1st accused through Sasikumar, despite the payment, a false complaint was lodged against him by 1st accused and with the held of 3rd accused the aforesaid cheques have been forcibly taken by them. Immediately after the return from the police station, the complaint had issued a legal notice on 12. 2007 to the 1st accused and Sasikumar. Both of them received the legal notice, but neither replied nor returned the cheques. Aggrieved over the same the complainant lodged the complaint." .4. It is seen that on 7. 2007, the learned Judicial Magistrate returned the complaint with the following endorsement:- ."The complaint does not contain any specific allegation against the accused (3) who is the Police Officer, so as to attract any of the offences stated in the complaint. Hence, the complaint against (A3) cannot be taken cognizance by this court. " .5. Being aggrieved by that, the petitioner filed Crl.O.P.No.22615 of 2007 before this Court and this Court by order dated 8. Hence, the complaint against (A3) cannot be taken cognizance by this court. " .5. Being aggrieved by that, the petitioner filed Crl.O.P.No.22615 of 2007 before this Court and this Court by order dated 8. 2007 directed the leaned Chief Judicial Magistrate, Chengalpattu to take the complaint on file and record sworn statement of the complainant and other witnesses of the complainant and dispose of the matter according to law as contemplated under Sections 201, 202 and 203 Cr.P.C. 6. Pursuant to the said direction, the petitioner represented the complaint on 9. 2007 and on the same date, the sworn statement of the complainant had been recorded and thereafter, the sworn statement of two other witnesses produced by the complainant was recorded. After considering the allegations in the complaint and the sworn statement of the complainant and his two witnesses, the learned Chief Judicial Magistrate dismissed the complaint under Section 203 Cr.P.C., pointing out certain lacunae in the statements of C.Ws.2 and 3 and about the non mentioning of their names in the complaint as well as the non inclusion of their names in the list of witnesses and the non mentioning of their names in the sworn statement of C.W.1. 7. The learned counsel for the petitioner submitted that though in the complaint as well as in the sworn statement, the complainant had specifically stated that he was taken to the office of the third respondent herein and under threat and coercion he was made to part with the cheques to a total value of Rs.12,50,000/-, the learned Chief Judicial Magistrate has observed in his order as if no specific averments have been made in the complaint as against A3, the third respondent herein. 8. The learned counsel further submitted that the non mentioning of the names of the two witnesses, C.Ws.2 and 3 in the complaint as well as in the list of witnesses itself will not affect the case of the complainant. The learned counsel further submitted as contemplated under Section 200 Cr.P.C., it is the duty of the court to examine the complainant and his witnesses, if any, upon oath and it is not necessary that their names should have been mentioned in the complaint. 9. The learned counsel further submitted as contemplated under Section 200 Cr.P.C., it is the duty of the court to examine the complainant and his witnesses, if any, upon oath and it is not necessary that their names should have been mentioned in the complaint. 9. The learned counsel submitted that at the stage of taking cognizance, the learned Judicial Magistrate has only to consider whether the allegations contained in the complaint and the sworn statement of the complainant and the witnesses, prima facie, reveal the commission of offence alleged in the complaint or not. But the learned Chief Judicial Magistrate meticulously considered the discrepancies and contradictions in the statement of witnesses and therefore, the order is liable to be set aside. .10. In support of the said contentions, the learned counsel relied upon the decision of the Apex Court reported in JT 1996 (11) S.C. 175 (Smt. Rashmi Kumar v. Mahesh Kumar Bhada) and a decision of this Court reported in 1998 Crl.L.J. 4333 (PONNAL ALIAS KALAIYARASI V. RAJAMANICKAM AND 11 OTHERS). 11. The learned counsel further submitted that at this stage, if this court comes to a conclusion that the order is liable to be set aside, the same can be set aside straight away since at this stage no notice need be given to the accused/respondents herein. 12. I have carefully considered the aforesaid submissions made by the learned counsel for the petitioner and perused the decisions relied upon and the order of the learned Chief Judicial Magistrate. .13. In the decision reported in JT 1996 (11) S.C.175, the Apex Court has observed as under:- ."It is fairly settled legal position that at the time of taking cognisance of the offence, the Court has to consider only the averments made in the complaint or in the charge sheet filed under Section 173, as the case may be. It was held in State of Bihar v. Rajendra Agrawalla JT 1996 (1) SC 601 = (1996) 8 SCC 164 that it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charge sheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation would disclose the offence for which cognizance would be taken by the court to proceed further in the matter. Thus it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not. The learned Judge, therefore, was clearly in error in attempting to sift the evidence with reference to the averments made by the respondent in the counter-affidavit to find out whether or not offence punishable under Section 406 I.P.C. had been made out." .14. In the decision reported in 1998 CRI.L.J. 4333, a learned Judge of this Court, in paragraph 7 has observed as under:- ."No doubt, it is true that that the complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the learned Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a prima facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C., enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage. This is what exactly done by the learned Magistrate in the instant case.” 15. At the stage of Section 202 Cr.P.C., enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage. This is what exactly done by the learned Magistrate in the instant case.” 15. In the light of the law laid down in the aforesaid decisions, if the order of the learned Chief Judicial Magistrate is considered, it has be to be held that the same is liable to be set aside. 16. This court is of the considered view that the learned Chief Judicial Magistrate has exceeded the scope of enquiry contemplated under Section 202 Cr.P.C. and has gone to the realm of appreciation and to the question of sufficiency of the evidence for conviction of the accused. A careful perusal of the complaint and the sworn statement given by the complainant and his two witnesses makes it abundantly clear that there are allegations to the effect that the complainant/petitioner was taken to the office of the third respondent herein, where he was enquired into, threatened and three cheques to a total value of Rs.12,50,000/- were obtained under coercion. .17. When such allegations are available, it was not proper on the part of the learned Chief Judicial Magistrate to enter into the realm of appreciation of evidence and to the question of the sufficiency of the evidence for conviction of the accused. The learned Chief Judicial Magistrate failed to see that though in the complaint the name of the third respondent has been originally cited as a witness, the same had been struck off on 12. 2007 itself and it has been initialed by the learned counsel for the petitioner and the name of the third respondent had been shown as third accused on 12. 2007 itself in hand writing and the same has been countersigned by the learned counsel for the petitioner and from that it cannot be said that originally the complaint was filed without arraying the third respondent as an accused but cited only as witness. When clear allegations have been made against the third respondent in the complaint, the learned Chief Judicial Magistrate erred in saying that no allegations have been made against the third respondent/accused. 18. When clear allegations have been made against the third respondent in the complaint, the learned Chief Judicial Magistrate erred in saying that no allegations have been made against the third respondent/accused. 18. It has been held in State of Bihar v. Rajendra Agrawalla (JT 1996(1) SC 601 = (1996) 8 SCC 164 ) that it is not open for the court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no prima facie case is made out for proceeding further in the matter. 19. As held in the cases of Somu alias Somasundaram and others v. State and another (1985 L.W. (Crl.) 25) and Sivasankar v. Santhakumar (1991 (1) MWN (Cr.) 265 Mad.), that in the case of dismissal of the complaint under Section 203 of Criminal Procedure Code, the person accused of the offence need not be given the right of audience in revision proceedings challenging the dismissal order. 20. For the aforesaid reasons, this Court is constrained to set aside the order passed by the learned Chief Judicial Magistrate. Accordingly, the above Criminal Revision Petition is allowed setting aside the order of the learned Chief Judicial Magistrate, Chengalpattu. Further, the learned Chief Judicial Magistrate is directed to take the complaint on file in respect of the respondents/accused, issue summons and proceed with the trial in accordance with law.