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Judgment
Arunachalam, J.—The Petitioners and the Respondent are the same in both these petitions and the cause of action is also the same. Hence these petitions are disposed of by a common order.
Crl. M.P. No. 10765 of 1987 is only a splinter of Crl. M.P. No. 10762 of 1987 and the result in Crl. M.P. No. 10762 of 1987 will decide the nature of order to be passed in Crl. M.P. No. 10765 of 1987.
The Petitioners are being prosecuted at the instance of the Respondent, on a private complaint instituted by the latter before the Chief Judicial Magistrate, Pudukottai alleging commission of offences by the former, punishable under Sections 420, 509 and 500, I.P.C.
The allegations in the complaint show, that the Respondent purchased a cupboard on 19-3-1981 at Madras from V.G. Panneerdoss company situated at No. 39, Victory House, Mount Road, Madras. The Respondent paid Rs. 1065 towards the cost of the cubboard and Rs. 6(Sic) towards packing, totalling in all to Rs. 1130. The Petitioners had issued two receipts for the aforestated payments. According to the Respondent, the Petitioners promised to despatch the cupboard even on the next day through the transporter, T.V.S. Lorry Service. However, the cupboard was despatched only 4 or 5 days later on 24-3-1981, through T.V.S. Lorry Booking Office situated at Chindadripet. This delay in despatch, according to the Respondent amounts to an offence of cheating.
The complaint also discloses that on 4-4-1981, the Respondent took delivery of the cupboard from the transporter at Aranthangi after paying the freight charge of Rs. 107.50. On the same day the Respondent took the cupboard to his village Irayan Patti, and on opening the package, found the cupboard dented and damaged. It is the grievance of the Respondent, that the Petitioners had despatched a useless cupboard and hence had not only cheated him, but had also committed the offence of criminal breach of trust. The persons nearby criticised the Respondent for having permitted himself to be duped. Subsequently, the correspondence between the Respondent and the Petitioners, did not yield the expected result. Therefore the Respondent filed O.S. No. 342 of 1981 on the file of the District Munsif, Araotbangi, against V.G. Panneerdoss Company and T.V.S. Lorry Service for damages. The Petitioners filed a written statement in the suit. In paragraph 7. the following averments have been made:
This Defendant submits that the Plaintiff has purchased the steel cupboard from the Mount Road Branch of this Defendant 19-3-1981 and paid the full amount and requested to send the same through lorry parcel to Aranthangi and a regular bill was made out in his name and he has signed in it as having taken ownership of it.
The Respondent alleges that the word ''yaken'' means and the use of that word he had been defamed. This portion of the written statement is the subject-matter of the offence alleged u/s 500, I.P.C. For the completion of facts, it must be stated that though the District Munsif, Aranthangi held that he had no jurisdiction to entertain the suit, in an appeal before the court of Session, Pudukottai in A.S. No. 125 of 1985, the appeal was allowed and the transporter was directed to pay damages of Rs. 2,000 plus the interest and costs of the litigation. The Petitioners were, owner, exonerated in the civil litigation.
In these petitions. (Crl. M.P. Nos. 10762 and 10765 of 1987) to call for the records and quash the pending prosecution in C.C. No. 133 of 1987, as well as to set aside the order of the same Magistrate in Crl. M.P. No. 4581 of 1987 as not sustainable, Mr. K.S. Dinakaran, learned Counsel appearing on behalf of the Petitioners contended that the averments in the complaints do not disclose ingredients necessary to constitute offences under Sections 420 and 409 I.P C. As far as the offence under 500 I.P.C. is concerned, he submitted that the written statement was filed on 28-6-1983, more than 2 years after the Respondent had taken delivery of the cupboard The transaction relating to the alleged cheating and criminal breaching of trust have no connection whatsoever with the alleged defamation stated to have been committed on 28-6-1983. The causes of notice being different, the Petitioners cannot be prosecuted in the same trial. He also urged that the context in which the word ''yaken'' has been used in the written statement will have to be taken note of and it was a typographical mistake for the word ''taken''. The word ''yaken'' has no meaning whatsoever in the Dictionary and the meaning appears to have been invented by the Respondent himself somehow or other furnish cause of action. It was also contended that the complaint filed on 26-11-1986 in respect of the alleged defamation committed on 28 6-1983 was barred by limitation.
I have heard Mr. C.S. Krishnamoorthy, learned Counsel appearing on behalf of the Respondents on both these contentions.
The conspectus of facts stated above, clearly show, that a transaction of sale of a cupboard, in the usual course of business, has unnecessarily been made a cause for instituting prosecution, before the Chief Judicial Magistrate, Pudukottai. The Respondent had purchased a cupboard and the cupboard so purchased had been despatched to him by the Petitioners, though there was a delay of 4 days in the despatch. By no stretch of imagination the delay of 4 days in despatch can be stated to constitute deception within the meaning of Section 415, I.P.C. To constitute an offence punishable u/s 420 I.P.C., there must have been an initial deception and the Petitioners must have dishonestly induced the Respondent to deliver cash to them, the ulterior object being not to send the cupboard but cause thereby wrongful loss to the Respondent. That is not the case of the Respondent himself in the complaint. It is not known how this complaint was entertained for an offence u/s 420, I.P.C Equally it is a strange, that the cast had been taken on file for an offence u/s 409, I.P.C. It is not possible to comprehend as to how the ingredients of entrustment or the dishonest user or disposal of the property entrusted, in violation of any legal contract express or implied, had been made out, on the averments in the complaint. It is not even the case of the complainant, that the Petitioners wilfully suffered the transporter to commit the offence of criminal breach of trust. Mechanical taking of the case on file without judicial application of mind is bound to affect the liberty of citizens, as well result in wastage of public time and money. Courts are bound to consider seriously the averments made in the complaint, before process is issued to the accused for the issue of process certainly affects the liberty of the citizen. A mere habitual receipt of complaints and artificial issue of process, will have to be deprecated. It is also not known how the learned Magistrate, had taken the case on file, for an offence punishable u/s 500, I.P.C. The averments in the complaint themselves show, that the alleged defamation was 2 years later after the sale and purchase of the cupboard. The Magistrate must have also considered whether the word was defamatory at all in the context of the whole paragraph in the written statement, which contains the word ''yaken''. "Yaken ownership" can have no meaning whatsoever and, as rightly pointed out by the learned Counsel for the Petitioners, a mere typographical mistake, had been made a big issue to institute this private complaint. The offences under Sections 420 and 409, I.P.C. and Section 500, I.P.C. on facts cannot be tried together, in one trial for by no stretch of imagination, it could be stated that they form part of the same transaction. The instances are distinct and separate and also distanced time-wise. Further, the offence u/s 509, I.P.C. is punishable with simple imprisonment, which may extend to two years or with fine or with both fine or with both Section 468(2)(c), Code of Criminal Procedure fixes a limitation bar of three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. Admittedly the complaint was filed on 26-11-1986 in respect of the alleged defamation committed on 28-6-1983. The complaint in respect of that offence was barred by limitation, having been preferred five months after the bar was effective. Of course, this question of limitation need not have loomed large, since u/s 468(1)(c) the limitation in relation to the offence which may be tried together shall have to be determined with reference to tie offence which is punishable with more severe imprisonment, or as the case may be the most severe punishment. The question of limitation has been considered only because of the offences cannot be tried together in this complaint. If that be so, the question of limitation cannot be totally erased from consideration.
Looked at from any angle, the very entertainment of the complaint and issue of process to the Petitioners does not have the sanction of law, for the ingredients of the offences alleged are not at all disclosed on the avernments made in the complaint. Crl. M.P. No. 10762 of 1987 is allowed and the proceedings in C.C. No. 133 of 1987 on the file of the Chief Judicial Magistrate, pudukottai shall stand quashed.
Crl. M.P. No. 10765 of 1987: This petition seeks to have the order of the Chief Judicial Magistrate, Pudukottai made on 17-9-1987 in Crl. M.P. No. 4581 of 1987 in C.C. No. 133 of 1987 set aside. The Petitioners were permitted to be represented by their counsel u/s 205, Code of Criminal Procedure in pursuance of an order made by Padmini Jesudurai, J., in Crl. M.P. No. 10764 of 1987. Inspite of such an order, it appears, the learned Magistrate was particular, that the Petitioners should appear in person before him for the purpose of obtaining copies of the complaint. The learned Magistrate has chosen to pass an order that the Court was entitled to find out and confirm if the Petitioners were alive or dead, and further the High Court had not directed that the Petitioners'' counsel could appear on their behalf, till the termination of the trial. It was the view of the Magistrate that he must see the live Petitioners before him and directly hand over the copies of the complaint. In that view, he refused to hand over the copies of the complaint to the counsel who had entered appearance on special vakalath, on their behalf. The approach of the learned Magistrate certainly does not appear to be commendable. Not only he was bound by the order of the High Court, but if he felt that he had to use his discretion u/s 205, Code of Criminal Procedure, he must have used it judiciously and not rashly. This Court had pointed out, that the provisions of Section 205, Code of Criminal Procedure may have to be used liberally, especially in a case of this type, where the identify of the Petitioners is not in dispute. Sticking on the some unnecessary procedure, not contemplated in law, will not tend, for the furtherance of the cause of justice. A mere look at the provisions of Section 204, Code of Criminal Procedure will show, that in a proceeding instituted upon a complaint made in writing, every summons or warrant issued under Sub-section (1) shall be accompanied by a copy of such complaint. Issue of summons or warrant takes effect after the Magistrate forms an opinion to take cognizance of the offence holding that there was sufficient ground for proceeding. In a summons-case, he shall issue summons for the attendance of the accused and in a warrant-case he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear before him on a fixed date and time. This provision itself would positively show, that the presence of the Petitioners for the purpose of obtaining copies of the complaint, was not mandatory. Further, the reason stated by the Magistrate, that he had to verify personally whether the Petitioners were alive or dead to say the least appears to be fanciful rather than real. I would not have dealt with this petition in detail, for as a corollary to the allowing of the petition in Crl. M.P. No. 10762 of 1987, this petition had automatically becomes infructuous. However, I thought it fit to deal with this petition as well at some length, for the Magistrates must be made award, of the procedure contemplated in law. Though this petition has become infructuous, in view of Crl. M.P. No. 10762 of 1987 having been allowed, I still choose to set aside the order of the learned Magistrate in Crl. M.P. No. 4581 of of 1987 as totally unsustainable. Both the petitions are allowed.