M.P. Sirajudeen vs M. Ganesan

K.M. Natarajan, J.—This appeal is directed against the order of acquittal of the respondent-accused passed by the learned Sub Divisional Judicial Magistrate, Sankari in C.C. No. 449 of 1978.

The brief facts which are necessary for the disposal of the appeal are as follows : The appellant herein preferred a private complaint against the respondent-accused under S. 211 of the I.P.C. The case of the appellant is that he is employed as an Administrative Officer of P.S.K. Finance and Chit Funds Limited, Salem, and that he is attending to the business of Nirmala Bankers which is the sister concern of the said P.S.K. Finance and Chit Funds Ltd. In pursuance of an order of attachment passed by the Sub Court, Salem, in O.S. No. 139 of 1978 against one Lakshmana Goundar for the debt due to the Nirmala Bankers, two pumpset motors belonging to the said Lakshmana Goundar were attached by the court Amin on 12th February, 1978 in the presence of the Village Munsif. The respondent-accused preferred a complaint before the Namigiripet Police Station against the appellant herein and others under S. 147, 448 and 379, Indian Penal Code and the same was registered in Cr. No. 59 of 1978 and that it was later referred by police. The averments in the said complaint are totally false and the respondent had made the said allegations with a view to harass the appellant and to damage his reputation and as such his action amounts to an offence under S. 211 of Indian Penal Code.

In support of the above allegations, four witnesses were examined and Exs.P1 to P4 were filed. P.W. 1 is no other than the complainant himself and P.W. 2 is the Amin of the court who effected the order of attachment. P.W. 3 is the Managing Partner of the said P.S.K. Finance and Chit Funds Limited as well as the employer of the complainant. P.W. 4 is a resident of Moolapallipatti. They were examined to prove that the attachment of one 5 H.P. motor and one 25 H.P. motor belonging to Lakshmana Gounder was effected in pursuance of the order under Ex. P1 in the presence of P.W. 1, Lakshmana Gounder and others and that they were entrusted with P.W. 3 on his executing security bond Ex. P2. List of properties attached is marked as Ex. P3. Ex. P4 is the original complaint preferred by the respondent-accused to the police in Cr. No. 59 of 1978.

When the accused was examined with reference to the incriminating pieces of evidence, he totally denied the evidence as false. He would further state that those motors were removed from his leasehold premises when he was not present and that this case has been foisted. He has also filed the lease deed dated 27th January, 1975 and a copy of the judgment in O.S. No. 744 of 1975 on the file of the District Munsif, Namakkal to be read as part of the accused-statement. No witness was examined on his side.

The learned Magistrate for the reasons assigned in his judgment held that none of the ingredients to constitute the offence under S. 211, Indian Penal Code was made out and the complainant has not established the case against the accused beyond all reasonable doubt. Hence the aggrieved complainant has preferred this appeal.

Learned Counsel for the appellant, Mr. R.M. Krishna Raju took me through the evidence adduced in the case and the judgment of the court below and submitted that the lower court has not properly appreciated the evidence of P.Ws.1 to 4 in a proper perspective and that the court below erred in disbelieving the presence of the accused and his knowledge about the attachment of motor pumpsets under orders of court and further the reasons adduced by the court below in support of its finding of acquittal are unsustainable.

The only question before us is whether there is acceptable evidence to establish the ingredients to constitute the offence under S. 211 , Indian Penal Code. Ex. P4 is the complaint given by the accused to the police on 13th February, 1978 and it is only on the basis of the said complaint, the appellant has preferred this complaint under S. 211 of the Indian Penal Code. In Para 5 of the said complaint, it is alleged that the respondents, namely, the complainant herein and three others, have no manner of any right to enter into the premises of the mills which is in the possession and enjoyment of the complainant who stands unconnected with any of the civil or criminal cases and that on 13th February, 1978 when the complainant reached his native place at 10 A.M. he was told of the occurrence that happened in the mill premises and that on collecting sufficient information from those who witnessed the scene, he was left with no other option except to resort to the help of the police and hence the complaint. The allegation leveled against the appellant is in para 4 of the said complaint, wherein it was alleged that the appellant herein along with others in the early hours of 12th February, 1978 with a gang of 25 strong men all working at P.S.K. Finance Corporation Private Limited, Salem, under the guise and pretext of an alleged order obtained from the Salem Sub-Court against one Lakshmana Gounder and four others, of whom the complainant is not the one, entered into the said Sago factory in the absence of the complainant and in the presence of witnesses and threatened the inmates who were working at the time in the mill with dire consequences and forcibly took away the properties in a lorry bearing MDT 5143 by name Anbu. The occurrence took place between 5 and 6 A.M. when the entire village was asleep. The description of properties included the motors and other accessories.

The learned Magistrate mainly acquitted the respondent herein on the ground that none of the ingredients which are necessary to constitute an offence under S. 211 of the Indian Penal Code has been made out against the accused. According to the lower court, in the original complaint by the appellant herein and in his sworn statement, nothing has been whispered about the presence of the accused at the time P.W. 2 effected attachment as per order of court along with P.W. 1 and others. Only during evidence, P.W. 1 has stated that the accused was present and as such the accused could not have been present at the time of effecting the said attachment. Learned counsel for the appellant submitted that even the Amin P.W. 2 who was examined has identified the accused as one who was present at the time of attachment and as such the court below erred in arriving at the conclusion that he was not present. But, except the statement of the Amin in Court, he had not mentioned anything in the endorsement of the warrant about the presence of this accused and only for the first time he identified the accused in court and as such it is highly unsafe to fasten weight on the evidence of the amen. Further, the very report Ex. P4 given by the accused clearly shows that he came to know of the occurrence only subsequently from the persons who were present. If really the accused was present, he would not have kept quiet and he would be the first person to obstruct delivery and he would not have failed to mention the same in his complaint. Further, the question whether the accused was present at the time or not does not assume much importance. We are now concerned whether he made any allegations falsely with intent to cause injury to the appellant herein and without any just or lawful ground for such charge against that person. It is to be noted that even in the complaint and the sworn statement, it has not been specifically stated that this complaint has been filed with intent to cause injury and without any just and lawful cause. Further, the fact that the accused was in possession of the said premises on the relevant date of attachment has been admitted by P.W. 1 himself in his evidence and that he has produced the registered lease deed along with the Statement under S. 313, Crl.P.C. Beyond that, he has also filed a claim petition wherein also he has stated that he is in possession of this property. On a petition filed by him to raise the attachment, he has been directed to offer security for the same. From the above proceedings and documents, it is clear that the accused was in possession of the said premises by virtue of the lease deed and as such he was affected by the attachment effected on the date in question. Even in the complaint, he has stated that under the guise of an order passed by civil court, Salem, they have taken the pumpsets. It is not in dispute that this accused was not a party to the said proceedings. It was filed against one Lakshmana Gounder. According to the accused, between him and Lakshmana Gounder, there were prior proceedings on the file of D.M.C. Namakkal in O.S. No. 744 of 1975 and he has also filed certified copy of the judgment. It is not in dispute that two pumpsets in the said premises were attached on the date in question and as such it cannot be said that the accused has preferred the complaint without any lawful or just cause. As observed by the Court below, there is nothing in the evidence of these witnesses that the said complaint was made with intent to cause injury or damage to the complainant which is the main ingredient for constituting an offence under S. 211, Indian Penal Code. Even though the complaint given by the accused herein has been referred as ''civil nature'', the complainant who has cited the Sub-Inspector as a witness has not chosen to examine the Sub-Inspector or the village Munsif who was present at the time of attachment. Thus on going through the judgment passed by the court below and the evidence adduced in the case, I am of the view that the said finding has not suffered from any manifest irregularity or illegality which requires any interference in the appeal. But, on the other hand, it is supported by acceptable reasons.

Learned Counsel for the respondent also submitted that the complaint itself is not maintainable without obtaining sanction of the Court before which the complaint was preferred. It has to be noted that on the complaint Ex. P4, the Sub-Inspector of Police registered a case in Cr. No. 59 of 1978 and the said complaint has been referred as "civil nature". From the records it is seen that the Judicial Second Class Magistrate, Rasipurarn, passed an order on the report of the police, "recorded as civil nature" on 7th August, 1978 in his proceedings dated 7th August, 1978 under S. 175, Cr.P.C. According to the Learned Counsel for the respondent, the said order passed by the Court below is a judicial order and for prosecuting the accused, the complaint should be filed by court in view of the provisions under S. 195(1)(b) of the Code of Criminal Procedure. In support of the contention, the Learned Counsel drew the attention of this Court to the decision reported in Kamalapati Trivedi v. The State of West Bengal 1979 L.W. (Crl.) 48 (short notes), wherein their Lordships of the Supreme Court held:

...When a person falsely charges another person of a cognizable offence bet ore a Police Officer and when the Police Officer upon investigation finds that there is no sufficient evidence or reasonable ground for suspicion to justify the forwarding of the accused to the magistrate under S. 160 and the Magistrate agrees with him, an offence under S. 211 is committed in or in relation to ''any proceeding in any court.'' It is settled law that when a Magistrate applies his mind under Chapter XVI that is on complaints, he must be held to have taken cognizance of the offence mentioned in the complaint but when he applies his mind not for such purpose but for purpose of ordering investigation under S. 156(3) or issues a search warrant for the purpose of investigation, he cannot be said to have taken cognizance of any offence.

It was observed that the Magistrate is debarred from taking cognizance of the offence under S. 211 of the Indian Penal Code in the absence of a complaint in writing of the magistrate himself in view of the provisions of S. 195(1)(b) Cr.P.C. In the above quoted decision, the objection in this regard was upheld and the proceedings instituted for the offence under S. 211 was quashed. Learned Counsel drew attention to two decisions of this Court reported in Chandrasekhara Pandian v. V. Muthukaruppa Thevar 1983 L.W. (Crl.) 347 and Namasivayam v. State 1981 L.W. (Crl.) 151 wherein also it was held that the order passed by Magistrate on the referred charge sheet is a judicial order. Thus, applying the ratio laid down in the above decisions also, I am of the view that the order passed by the magistrate on the referred charge-sheet is a judicial order and that complaint by the said court is necessary for prosecuting the accused under S. 211, Indian Penal Code. Even though the said point was not taken before the court below, since it is a legal point, the Learned Counsel for the respondent was allowed to raise the same and the finding was given. Thus, both on question of law regarding the maintainability of the complaint and also on merits, I am of the view that the order of acquittal cannot be assailed and Hence I do not propose to interfere with the said order of acquittal. Consequently the order of acquittal is confirmed and this appeal fails and stands dismissed.