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2017 DIGILAW 2503 (MAD)

S. Mahesh v. M. A. Sheik Abdullah

2017-08-08

V.BHARATHIDASAN

body2017
ORDER : Challenging the order passed by the learned Chief Judicial Magistrate, Thanjavur at Kumbakonam, dated 8.7.2010, the present revision has been filed. 2. The Petitioner has filed a private complaint against the respondent herein before the learned Judicial Magistrate, Pattukkottai for the alleged offence under Section 420 of IPC, Section 138 of Negotiable Instruments Act and also under Section 13(1)(d) of the Prevention of Corruption Act. 3. The learned Judicial Magistrate returned the complaint stating that the complaint has been filed for the alleged offence under Section 420 of IPC, Section 138 of Negotiable Instruments Act and also under Section 13(1)(d) of the Prevention of Corruption Act, the Judicial Magistrate has no power to try the offence punishable under the Prevention of Corruption Act. Hence returned the complaint for presentation before the competent Court. Thereafter the Petitioner filed the present complaint before the Chief Judicial Magistrate, Thanjavur at Kumbakonam. The learned Chief Judicial Magistrate after considering the complaint, come to the conclusion that there is no offence made out for the Prevention of Corruption Act and also under Section 420 of IPC. Hence directed the Petitioner to proceed against the accused only under Section 138 of Negotiable Instruments Act. Challenging the same, the present revision has been filed. 4. Even though notice was served on the first respondent and his name is also printed in the cause-list, none appears on behalf of the first respondent. So far as the second respondent is concerned, notice could not be served, despite several efforts has been taken by the Petitioner to serve notice on him. Taking into consideration the nature of the order going to be passed and the fact that the complaint is in pre-cognizance stage, no notice is required to be served on the second respondent. Hence notice to the second respondent is dispensed with. 5.I have heard the submissions of Mr.A.Thiruvadikumar, learned counsel for the Petitioner and considered the records carefully. 6. From the perusal of the records, it is seen that the Petitioner filed a private complaint for the alleged offence under Section 420 of IPC, Section 138 of Negotiable Instruments Act and also under Section 13(1)(d) of the Prevention of Corruption Act. Since the complaint has been filed under Section 13(1)(d) of the Prevention of Corruption Act, admittedly, the learned Judicial Magistrate has no power to entertain the complaint. Since the complaint has been filed under Section 13(1)(d) of the Prevention of Corruption Act, admittedly, the learned Judicial Magistrate has no power to entertain the complaint. Hence the learned Judicial Magistrate has rightly returned the complaint for presentation of the same before the appropriate Court. While the complaint has been presented before the Chief Judicial Magistrate, Kumbakonam, the learned Judge has given a finding that the offence under Section 13(1)(d) of the Prevention of Corruption Act and offence under Section 420 IPC is not made out. Hence he directed the Petitioner to proceed against the accused only under Section 138 of Negotiable Instruments Act. 7. Now the learned counsel for the Petitioner submitted that he is not pressing the complaint for the allegation in respect of the offence under Prevention of Corruption Act and as there are allegations of cheating are available in the complaint, prima facie case is made out under Section 420 of IPC. The learned Chief Judicial Magistrate without considering the same, has mechanically given a finding as if no case is made out for the offence under Section 420 of IPC, which is not permissible under law. I find some force in the arguments of the learned counsel for the Petitioner. While a complaint under Section 200 Cr.P.C has been filed, the learned Judicial Magistrate has to consider the complaint as well as the sworn statement of the complainant and any other evidence is produced before him and based on the above, the Judicial Magistrate has come to a conclusion whether any prima facie case is made out or not. But the learned Chief Judicial Magistrate only on considering the complaint alone, he has given a finding that no offence is made out for the offence under Section 420 IPC and Section 13(1)(d) of the Prevention of Corruption Act, which is not permissible under law and hence the order passed by the learned Chief Judicial Magistrate has to be set aside. 8. Now, at this stage, the learned counsel for the Petitioner has submitted that he is not pressing the complaint for the offence under the Prevention of Corruption Act and he restricted his complaint only in respect of the offence under Section 420 of IPC and Section 138 of Negotiable Instruments Act. 9. 8. Now, at this stage, the learned counsel for the Petitioner has submitted that he is not pressing the complaint for the offence under the Prevention of Corruption Act and he restricted his complaint only in respect of the offence under Section 420 of IPC and Section 138 of Negotiable Instruments Act. 9. In the above circumstances, the order impugned herein in R.No.692 of 2010, on the file of the Chief Judicial Magistrate, Thanjavur at Kumbakonam, dated 8.7.2010 is set aside and the Petitioner is directed to present the complaint before the learned Judicial Magistrate, Pattukkottai and on presenting the complaint, the learned Judicial Magistrate, Pattukkottai is directed to consider the complaint as per Section 200 of Cr.P.C and pass orders on the same, in accordance with law. 10. With the above observation, the Criminal Revision Case is disposed of.