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Judgment
M. Karpagavinayagam, J.—The private complaint filed by one Sethuraman, the Respondent herein, which was taken on file in C.C. No. 4 of 2000 by the learned Judicial First Class Magistrate, Pondicherry for the offence under Sections 403, 406, 417 and 420 I.P.C., is sought to be quashed through this petition filed u/s 482 Code of Criminal Procedure by the accused J. Sekar, the Petitioner herein.
Mr. Krishnaswamy, the learned Counsel for the Petitioner, while seeking for quashing of the above proceedings, would mainly rely upon the following three points:
(i) Though the transaction in question took place in Cuddalore and in respect of the same transaction, the Petitioner filed a private complaint, which was referred to the police for investigation by the Judicial Magistrate No. II, Cuddalore, the Respondent/complainant chose to file the present private complaint before the Court of the Judicial First Class Magistrate, Pondicherry, which has no jurisdiction.
(ii) The learned Judicial First Class Magistrate, Pondicherry has not followed the provisions, while taking cognizance and issuing process u/s 204 Code of Criminal Procedure, by not recording details about production of witnesses by the complainant on the date of recording the sworn statement of the complainant. The compliance of the provision u/s 200 Code of Criminal Procedure is mandatory. The violation of the said provision would make the cognizance and the proceedings illegal, especially when there are no reasons mentioned in the order of cognizance showing application of mind.
(iii) After taking cognizance, the learned Judicial First Class Magistrate, Pondicherry directed issuance of summons to the accused by registered post. This is in violation of Section 62 Code of Criminal Procedure. Therefore, the issuance and the mode of service of summons are illegal.
While elaborating these three points referred to above, the learned Counsel for the Petitioner would in detail contend that the proceedings are illegal and the same are liable to be quashed. He would cite number of authorities in support of the above points.
On the other hand, the learned Counsel appearing for the Respondent would, in reply, content that all the three points raised by the learned Counsel for the Petitioner are not valid, in view of the fact that the trial Court has got jurisdiction to try the offences alleged in the complaint, since the offences were committed in Pondicherry and the other provisions, such as Section 200 Code of Criminal Procedure and Section 62 Code of Criminal Procedure, have been complied with.
I have carefully considered the submissions made by the counsel for the parties and gone through the affidavit, counter affidavit and other documents produced by both the parties. Further, I have summoned the records from the lower Court and perused the same.
The records would show that though the private complaint in question was filed for various offences, the cognizance was taken by the Judicial First Class Magistrate. Pondicherry only for the offences under Sections 403, 406, 417 and 420 I.P.C.
There is no dispute in the fact that with reference to the alleged act of criminal breach of trust committed by the Respondent/complainant, the Petitioner filed a private complaint before the Judicial Magistrate No. II, Cuddalore and after registration of the F.I.R. by the police, in pursuance of the order passed by the Court concerned, the investigation is pending.
Furthermore, while this petition was taken for final disposal, it was informed before this Court that the charge-sheet had been filed in that case before the Judicial Magistrate Court. Cuddalore against the Respondent/complainant alleging that the Respondent committed the offences under Sections 408, 477A, 420, 468 I.P.C. while he was a partner in the firms in question and the same is pending for trial.
In this context, we have to see the grounds urged by the Petitioner seeking for quashing of the private complaint filed by the Respondent.
Firstly, it is contended by the learned Counsel for the Petitioner that there is no jurisdiction for the Court at Pondicherry. This contention, in my view, would lack substance, in view of the fact that it is specifically stated in the complaint that the official premises of both the companies are situate both at Pondicherry and at Cuddalore.
As a matter of fact, in para 15 of the complaint, it is specifically stated that the amount initially invested by the complainant was parted with at Pondicherry and the final shape of the partnership business was also concluded only at Pondicherry
So, the reading of para 15 in the light of the details given in other paragraphs relating to the transaction would reveal that the partnership transaction took place at Pondicherry and as such, the Court at Pondicherry will certainly have jurisdiction to try the offences referred to above. Therefore, the first point would fail.
Regarding the second point, it is contended that the order of taking cognizance is not a speaking order and the order does not show the presence of the witnesses and as such, it is in violation of Section 200 Code of Criminal Procedure.
The learned Counsel for the Petitioner would cite the decisions in Nitin V. Bhimani and Another Vs. A.R. Basu, and Ramaswami Nadar v. Viswanathan ( 1957 M.L.J. (1) 157).
On the other hand, the learned Counsel for the Respondent would submit that non-mentioning of the fact relating to the presence of witnesses in the order issuing process would not vitiate the proceedings. In support of his contention, he would cite the decisions in M. Kunhayisu and Others Vs. P. Kallyani and Another, and Tara Dutta Vs. The State and Another,
A perusal of records from the lower Court would show that the private complaint was filed on 18.11.1999 and the matter was directed to be posted on 25.11.1999 and on that date, the complainant was present. Again, it was posted on 3.12.1999 for recording the statement of the complainant. On 3.12.1999, the complainant was present and his statement on oath was recorded and the matter was directed to be called on 10.12.1999 for consideration. Thereafter, the matter was adjourned to several dates, i.e.. on 10.12.1999. 15.12.1999, 6.1.2000. 11.1.2000 and lastly on 14.1.2000.
A perusal of the diary extract would reveal that after recording the statement of the complainant, the matter was adjourned to several dates for hearing the counsel. So, ultimately, after hearing the counsel and perusal of records, the following order was passed:
Complainant present. Records revised, As there is prima facie case made out only for offences under Sections 403, 406, 417 and 420 I.P.C., the case is taken on file u/s 403, 406, 417 and 420 I.P.C.
Issue summons to accused by R. P.A.D. and call on 15.2.2000.
The above details would make it obvious that the Judicial First Class Magistrate. Pondicherry after recording the sworn statement of the complainant and hearing the counsel on several dates, had ultimately passed the order on 14.1.2000.
As indicated above, it is specifically mentioned in the order that prima facie case was made out only for the offences under Sections 403, 406, 417 and I.P.C. Therefore, it cannot be said that the order has been passed without application of judicial mind.
It is true that there is no mention about the presence of the witnesses. It is equally true, as held by this Court in Ramaswamy Nadar v. Viswanathan (1957 M.L.J. (1) 157). that it is obligatory on the part of the Magistrate to examine not only the complainant, but also the witnesses, who are present in Court.
But, the said decision would not apply to the present case because the above observation was made by this Court in a revision filed by the complainant aggrieved by the order dismissing the complaint, even without examine the witnesses, who were present before the Court, when the complainant was examined.
In the instant case, the complainant alone, was examined and it was adjourned to several dates for hearing the counsel.
There is no dispute that u/s 200 Code of Criminal Procedure, it is obligatory on the part of the Magistrate to examine the complainant and his witnesses present, if any. The words "if any" in Section 200 Code of Criminal Procedure would suggest that the production of witnesses is optional. The complainant alone knows how he would establish a prima facie case, as he only first approaches the Court with grievances.
The purpose of examination of witnesses is only to ascertain whether a prima facie case against the person accused for the offence in the complaint is made out or not. This has to be decided in a judicial manner. The said judicial exercise cannot depend upon noticing as to whether the witnesses are present or not.
Thus, it is clear that before passing the order issuing process in a case initiated on a complaint, the Magistrate has to find out whether the complaint would make out a prima facie case or not. In case, such a prima facie case was made out by the complainant by examining himself, then there is no question of the Magistrate asking the complainant to produce other witnesses and in that event, the learned Magistrate will be justified in issuing the process.
Even assuming that it would be appropriate for the Magistrate to mention in the order that no witnesses were present in the Court, non mention of the said fact in the order cannot be taken as a ground to quash the proceedings, as there is no prejudice to the accused.
This view of mine has been expressed in yet another judgment rendered in Crl.O.P. No. 1062 of 1999 dated 16.4.2000 (Zoom Vision and Ors. v. Manickam and Company), on the basis of the observation of the Supreme Court in U.P. Pollution Control Board v. Mohan Meakins Ltd and Ors. (2000 (2) Supreme 520).
In the said decision, it has been clearly held by the Supreme Court that the order issuing process need not contain reason and as such, the order of taking cognizance could not be construed to be a non-speaking order.
Furthermore, in the case on hand, it is clearly mentioned in the order dated 14.1.2000 that there is a prima facie case made out for the offences referred to above on perusal of the records.
In this fact situation, I am not able to accept the contention of the learned Counsel for the Petitioner in regard to the second point.
As regards the third point, it is contended that violation of Section 62 Code of Criminal Procedure, by not observing the mode of service of summons as contemplated in the said provision, would vitiate the proceedings.
The said point has not been specifically mentioned as one of the points in the affidavit filed along with the petition for quashing. However, this point was elaborately argued by the learned Counsel for the Petitioner with the support of the following decisions:
(1) Sudhir Kumar Dutt v. The Kind (1952 C.W.N. (F.R.) 44):
(2) Bhimappa Gangappa Sonar v. Smt. lndirabai Kom Bhimappa Sonar (1981 Crl.L.J.NOC 8 (Kant):
(3) Maqsood Ahmad v. Arifa Khatoon (1983 All.L.J. 493):
(4) Thulasingam v. Padmavathi Ammal (1976 L.W. 101); and
(5) Sarat Chandra Ray Chowdhuri v. The Crown (1 C.W.N. oxvi);
While replying to this submission, the learned Counsel for the Respondent would cite 1988 M.LJ. (Crl.) 620 (Parthasarathy v. Banumathy). wherein it is held that violation of Section 62(1) Code of Criminal Procedure would not vitiate the proceedings. He would further contend that in this case. Section 62 Code of Criminal Procedure has been complied with since the notice has been served by the postman being a public servant, as contemplated u/s 62 Code of Criminal Procedure.
On going through the records, it is clear that the learned Magistrate directed issuance of summons to the accused only through.
Section 62(1) Code of Criminal Procedure provides "Every summons shall be served by a Police Officer or subject to such rules as the State Government may make in this behalf, by an Officer of the Court issuing it or other public servant".
According to the learned Counsel for the Petitioner, sending of summons through registered post is not in accordance with Section 62 Code of Criminal Procedure, as the summons was not served by the Officer of the Court or through police.
It is not debated regarding the receipt of summons by the accused. In fact, the Petitioner admitted in para 16 of the affidavit that he received the summons, which was sent to him by registered post and in obedience to the summons, he appeared before the Court at Pondicherry''.
There can be no quarrel with the proposition that a person shall be summoned to the Court in the manner provided in Sections 62 to 66 Code of Criminal Procedure Postal service is contemplated only u/s 69 Code of Criminal Procedure which would relate to witnesses.
It is true that service through post has not been specifically mentioned in Section 62(1) Code of Criminal Procedure. At the same time, it has to be noticed that there is no legal bar to the service of summons on a person by registered post, as the object of the service of summons is to make the summoned person being aware of the proceedings being taken against him. Therefore. It cannot be contended that the service of summons through registered post is altogether prohibited u/s 62(1) Code of Criminal Procedure.
Furthermore, all the decisions cited by the learned Counsel for the Petitioner would relate to the service of summons in maintenance proceedings. Even those decisions were distinguished by this Court in Parthasarathy v. Banumathi (1988 M.L.J. (Crl.) 620) and it has been held that violation of Section 62(1) Code of Criminal Procedure would not make the entire proceedings illegal.
That apart, as correctly pointed out by the learned Counsel for the Respondent, the summons can be served by the Court through any public servant, as indicated u/s 62 Code of Criminal Procedure.
It cannot be disputed that the Officer working in the postal department, whose duty is to despatch the registered post to the addressee, would be a public servant, as defined in Section 21 of the Indian Penal Code and as such, it cannot be said that there is total viola-lion of Section 62 Code of Criminal Procedure.
Even assuming that the mode of service by registered post is not contemplated u/s 62 Code of Criminal Procedure which would be at the most an irregularity and in my view it would not affect the valid cognizance taken in this case, especially when there is no plea on the part of the accused with reference to prejudice.
As noted above, the Petitioner would clearly mention in the affidavit that in obedience to the summons received, he promptly appeared before the Court concerned.
In view of the discussion made above, I do not find any merit in the contentions raised by the learned Counsel for the Petitioner so as to hold that the proceedings in question arc illegal.
In the result, the petition is dismissed. Consequently. Crl.M.P. No. 2935 of 2000 is closed.