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2012 DIGILAW 661 (MAD)

P. Shinu v. P. Perumal

2012-02-07

P.R.SHIVAKUMAR

body2012
JUDGMENT 1. The arguments advanced by Mr.E.V.N.Siva, learned counsel representing M/s.N.Vijayakumar, learned counsel on record for the petitioner were heard. The petition and the connected documents filed in the form of typed-set of papers were also perused. 2. The present revision has been filed against the order of the learned Judicial Magistrate, Padmanabhapuram, dated 12.11.2011 made in Crl.M.P.No.13062 of 2011 in STC No.414 of 2011, on the file of the Trial Court. The petitioner is the sole accused in the above said Criminal case S.T.C.No.414 of 2011, a case instituted on a private complaint by the respondent herein for the alleged offence punishable under Section 138 of Negotiable Instruments Act. The learned Judicial Magistrate, Padmanabhapuram after following the Private Complaint Procedure, issued summons under Section 204 Cr.P.C., to the petitioner herein/accused, on forming an opinion that the case was not one wherein it could be said that there was no sufficient ground for proceeding. 3. The petitioner/accused, who received the summons entered appearance and filed a petition praying for dropping all further proceedings in the said complaint based on the ground that the summons was not accompanied by a copy of the complaint. The said petition came to be filed citing Section 258 Cr.P.C., as the provision under which the relief was sought for. The learned Judicial Magistrate, Padmanabhapuram took it on file as Crl.M.P.No.13062 of 2011 in the above said S.T.C Number and heard the arguments advanced on both sides, after affording an opportunity to the respondent/complainant to file a counter affidavit. Upon such hearing, the learned Judicial Magistrate, Padmanabhapuram came to the conclusion that the further proceedings in a case instituted in a private complaint in which summons have been issued cannot be dropped on the technical ground of not serving a copy of the complaint along with the summons served on the accused and that the omission to serve a copy of the complaint would only amount to a curable irregularity, not vitiating the proceedings. Accordingly, the learned Judicial Magistrate chose to dismiss the petition by the impugned order, dated 12.11.2011. Aggrieved by and challenging the said order, the petitioner has approached this Court with the present Criminal Revision Case. 4. Accordingly, the learned Judicial Magistrate chose to dismiss the petition by the impugned order, dated 12.11.2011. Aggrieved by and challenging the said order, the petitioner has approached this Court with the present Criminal Revision Case. 4. Of course, it is true that, had the order of the learned Judicial Magistrate been otherwise, it would have resulted in the end of the proceedings and hence, the order sought to be challenged cannot be termed an interlocutory order and the bar provided under Section 397(2) Cr.P.C., does not get attracted. However, it is obvious from the records that the relief was sought under a provision which relates to cases instituted otherwise than on a private complaint. Section 258 Cr.P.C., applies to summons cases instituted otherwise than upon a complaint and in such cases, the learned Judicial Magistrate of First Class or any other Magistrate dealing with such cases with the previous sanction of the Chief Judicial Magistrate may stop the proceedings at any stage without pronouncing the judgment. It also provides that if such stoppage of proceedings is made after the evidence of the principal witnesses have been recorded, the same has to be done by pronouncing a judgment of acquittal and in any other case, namely, when the principal witnesses have not been examined, the order stopping the proceedings shall be directing the release of the accused. In either case, the learned Judicial Magistrate concerned has to record his reasons for so doing. 5. For better appreciation, the entire Section 258 Cr.P.C., is reproduced hereunder: "(258.) Power to stop proceedings in certain cases.-- In any summons-case instituted otherwise than upon complaint, a Magistrate of the first class or, with the previous sanction of the Chief Judicial Magistrate, any other Judicial Magistrate, may, for reasons to be recorded by him, stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, pronounce a judgment of acquittal, any in any other case, release the accused, and such release shall have the effect of discharge." 6. A reading of the Section will show that the provision applies to cases instituted otherwise than upon a complaint and the said section does not get attracted to a case instituted on a private complaint. Section 204 Cr.P.C., deals with the issue of process. A reading of the Section will show that the provision applies to cases instituted otherwise than upon a complaint and the said section does not get attracted to a case instituted on a private complaint. Section 204 Cr.P.C., deals with the issue of process. It is not confined to cases instituted on private complaints alone. Section 204 Cr.P.C applies to cases instituted otherwise than upon complaint as well. The duty of issuing process is that of the Court. The complainant in a complaint case cannot be found fault with for any lapse or failure on the part of the Court to annex copies of the documents necessary to accompany the summons. Sub-clause(3) of Section 204 Cr.P.C directs that every summons or warrant issued in a proceeding instituted upon a complaint made in writing, such summons or warrant shall be accompanied by a copy of the complaint. Sub-Section (4) says that no process shall be issued until the fees for issuing any process or other fees are paid and, if such fees are not paid within a reasonable time and the failure on the part of the complainant to make payment of such fees may result in the dismissal of the complaint. It is not the case of the petitioner that no process fee was paid by the complainant and still the Magistrate chose to issue process instead of dismissing the complaint for the non-payment of process fee. Even otherwise, the same shall be the matter between the Court and the complainant and the accused cannot take advantage of the said provision and seek for the dropping of the proceedings for no fault on the part of the respondent/complainant. For any omission on the part of the Court to forward the copies of the complaint along with the summons to be served on the accused, the complainant cannot be penalised by dropping the proceedings, which shall have the effect of the dismissal of the complaint. 7. Furthermore, the case being one instituted on a private complaint, when the petitioner/accused received the summons without being accompanied by a copy of the complaint, it is very much open to him to inform the same to the Court and seek supply of a copy of the complaint. 7. Furthermore, the case being one instituted on a private complaint, when the petitioner/accused received the summons without being accompanied by a copy of the complaint, it is very much open to him to inform the same to the Court and seek supply of a copy of the complaint. Instead of doing so, the petitioner seems to have chosen to file a petition praying for the dropping of the proceeding on the flimsy ground that he was not supplied with a copy of the complaint. 8. In fact, the case of the petitioner does not fit in any one of the clauses found in Section 461 Cr.P.C., to show that the criminal proceeding gets vitiated for the non-supply of a copy of the complaint along with the summons served on the accused. The learned Judicial Magistrate, Padmanabhapuram has rightly arrived at a conclusion that even if the petitioner's contention that the summons served on them was not accompanied by a copy of the complaint, it was a curable defect and the same would not vitiate the proceedings. This Court does not find any defect or infirmity in the order passed by the learned Judicial Magistrate, Padmanabhapuram. There is no merit in the Criminal Revision case. The revision does not even merit admission and on the other hand, it deserves dismissal at the threshold itself. 9. Accordingly, the Criminal Revision Case is dismissed. It is open to the petitioner to seek supply of a copy of the complaint by approaching the Court below. Consequently, connected Miscellaneous Petition is also dismissed.