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S. Mythily Vs. S. Balaji - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Case NumberCriminal Revision Case No. 669 of 2011
Judge
AppellantS. Mythily
RespondentS. Balaji
Excerpt:
.....arose, at the instance of de facto complainant as against the dismissal of her complaint by the learned judicial magistrate no.iii, coimbatore in crl.m.p.no.2005 of 2011. 2. the respondent filed two cheque bouncing cases in c.c.nos.372 and 373 of 2010 before the learned judicial magistrate no.iii, coimbatore as against the revision petitioner. crl.o.p.nos.11151 and 11152 of 2011 have been filed by the revision petitioner under section 482 cr.p.c. to quash these criminal proceedings. this court had stayed all further proceedings in the said cases. 3. the revision petitioner filed a complaint under section 200 cr.p.c., before the same judicial magistrate no.iii, coimbatore alleging that actually the money transaction was between her husband and the respondent, she has nothing to do with.....
Judgment:

(Prayer: This Criminal Revision is filed under Sections 397 and 401 of the Criminal Procedure Code as against the order dated 24.3.2011 made in Criminal M.P. No.2005 of 2011 on the file of the Judicial Magistrate No.III, Coimbatore.)

This revision arose, at the instance of de facto complainant as against the dismissal of her complaint by the learned Judicial Magistrate No.III, Coimbatore in Crl.M.P.No.2005 of 2011.

2. The respondent filed two cheque bouncing cases in C.C.Nos.372 and 373 of 2010 before the learned Judicial Magistrate No.III, Coimbatore as against the revision petitioner. Crl.O.P.Nos.11151 and 11152 of 2011 have been filed by the revision petitioner under Section 482 Cr.P.C. to quash these criminal proceedings. This Court had stayed all further proceedings in the said cases.

3. The revision petitioner filed a complaint under Section 200 Cr.P.C., before the same Judicial Magistrate No.III, Coimbatore alleging that actually the money transaction was between her husband and the respondent, she has nothing to do with that. However, she has to give security cheques and also some blank cheques to the respondent. They were misused by the respondent and he has demanded exorbitant and meter interest. The revision petitioner sought for taking her complaint on file and punish the respondent according to law.

4. On 24.3.2011, the learned Magistrate passed the following order (in vernacular language):-

Tamil

5. The sum and substance of the said order is that a pending case cannot give a cause of action to file another case and in any event in one case the Court cannot go into the details of another pending case before the Court and thus, there is no prima facie case and thus rejected the complaint.

6. The learned counsel for the revision petitioner/ complainant would contend that the approach of the learned Magistrate in dealing with her complaint is not in accordance with law. There was no proper and acceptable material for the learned Magistrate to pass the impugned order. The learned Magistrate without any basis refused to take cognizance. The learned Magistrate has simply carried away, misled by the pendency of cheque bouncing cases filed against her by the respondent. The impugned order is against fundamental judicial procedure and against the scheme provided under the Code of Criminal Procedure to deal with the private complaints under Section 200 Cr.P.C.

7. The learned counsel for the revision petitioner also cited Mehmood Ul Rehman vs. Khazir Mohammad Tunda and Others {(2015) 12 SCC 420}, S.R.Sukumar vs. S.Sunaad Raghuram {2015 (3) MWN (Crl.) 269 (SC) and Sathavu Pandian vs. Kalyani and Another {2016 SCC Online Mad 8862 (Madurai Bench)}.

8.The learned counsel for the respondent would submit that although the learned Magistrate has not taken cognizance as against the respondent and as on date in the private complaint, the respondent has not become an accused, the respondent is entitled to have opportunity to put-forth his case because if the revision succeeded or an adverse order is passed, he will be prejudiced. Although, hearing is not provided to the proposed accused at the pre-cognizance stage in a Magistrate's Court, in view of Section 401 Cr.P.C., in the Revisional Court, the respondent is entitled to have a hearing. In this connection, he has also cited the Constitution Bench decision in Manharibhai Muljibhai Kakadia and Another vs. Shaileshbhai Mohanbhai Patel and Others {2013 Crl.L.J. 144 (1)}.

9.The learned counsel for the respondent would contend that the learned Magistrate perused the allegations in the complaint filed by the revision petitioner, it is a counter-blast to her cheque bouncing case, the revision petitioner had engineered a baseless private complaint.

10. The learned counsel for the respondent also contended that the Trial Court having noticed that there is no prima facie case in her favour, rejected her complaint.

11. I have anxiously considered the rival submissions, perused the impugned order, the materials on record and the decisions cited.

12. Complaints to Magistrates are being dealt with under Sections 200 to 204 Cr.P.C. A complaint must be in writing. It must contain allegations constituting the offence complained of as provided in a Penal enactment. To take cognizance thereon, a Magistrate has to conduct an enquiry under Section 202 Cr.P.C.

13. The learned Magistrate, on perusal of the complaint, if he sees a cognizable offence, without recording the sworn statement of the complainant, he can forward the complaint under Section 156(3) Cr.P.C., to the police to register a case and investigate. Then police has to register FIR and investigate. In such circumstances, the private (complaint) case becomes a police case.

14. The learned Magistrate can also record the sworn statement of the complainant and direct the police to conduct enquiry under Section 202 Cr.P.C. and after receipt of the police (enquiry) report and on consideration of the sworn statement of the complainant and his witnesses, if any, he can take further action. The learned Magistrate has one more option. He can straight away examine the sworn statement of the complainant and his witnesses, if any and take a decision.

15. If upon consideration of the said materials consisting of the allegations in the written complaint, sworn statement of the complainant and his witnesses, if any, and the report of the police under Section 202 Cr.P.,C., if any, if he finds sufficient ground to proceed further, the learned Magistrate shall take cognizance under Section 190(1)(a) Cr.P.C. and issue summons to the accused under Section 204 Cr.P.C., when there is no sufficient ground to proceed or when there is no prima facie case then the learned Magistrate shall dismiss the complaint under Section 203 Cr.P.C., however, after giving brief reasons for his so doing.

16. Thus, what follows from the above is that without embarking upon such an enquiry, simply on reading the complaint without recording the sworn statement of the complainant and considering the materials on record, the learned Magistrate neither dismiss the complaint nor take cognizance thereon. {See S.R.Sukumar vs. S.Sunaad Raghuram {2015 (3) MWN (Crl.) 269 (SC)}

17. Summoning a person as an accused is a very serious matter (See Pepsi Food Ltd vs. Special Judicial Magistrate {(1998) 5 SCC 749} and Sathavu Pandian vs. Kalyani and Another {2016 SCC Online Mad 8862}). Before doing so, the learned Magistrate has to apply his judicial mind. At this stage of the case, the learned Magistrate need not go into the merit or weight or otherwise of the matter. At this stage, he cannot shift the preliminary evidence, but he can read such evidence analytically to find out whether it discloses any cognizable offence. The same would be the yardstick for this Court under Section 482 Cr.P.C., to issue direction to police to register FIR and conduct investigation. (See Lalita Kumar vs. State of UP {(2012) 4 SCC 1}).

18. In the light of the above principles, if we look at the impugned order passed by the learned Magistrate, the procedure adopted by him is not in accordance with the procedure prescribed under Section 200-203 Cr.P.C.

19. Instead of recording and perusing the sworn statement of the complainant and his witnesses, if any and considering the documents, if any produced by the revision petitioner and see whether disclose a prima facie case, the learned Magistrate has misdirected himself.

20. There is no bar in law that when a case is pending against a person in the Court, the accused cannot file a complaint against the complainant especially when the ingredients of the offence in both the cases are entirely different. The impugned order suffers from legality calling for our interference.

21. In view of the foregoings, it is ordered as under:-

(1) This Criminal Revision is allowed;

(2) The impugned order passed by the learned Judicial Magistrate No.III, Coimbatore in Crl.M.P.No.2005 of 2011 is set aside;

(3) The learned Magistrate shall restore the private complaint in Crl.M.P.No.2005 of 2011 to his file;

(4) The learned Magistrate shall deal with the said complaint in accordance with law and also the guidance provided in this order;

(5) As the matter now in pre-cognizance stage, the learned Magistrate will fix an hearing date, issue notice to the respondent and proceed further in accordance with law.


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