N. Boss vs Nirmala and another

N. Arumugham, J.—Invoking the inherent powers of this Court under S.482 of the Code of Criminal Procedure, the petitioner in both the

above cases, who was the accused in C.C. No. 103 of 1990 and C.C. 104/90 on the file of the Judicial Magistrate No. III, Coimbatore, faced

the trial for the offence punishable under S.138 read with 142 of the Negotiable Instruments Act, (hereinafter referred to as Act 16 of 1988), in

private complaints filed by the respondents herein respectively under S.200 of the Code of Criminal Procedure, and during the course of the trial of

the said cases, petitions under S.190 of the Code of Criminal Procedure on his behalf praying the learned Magistrate to take cognizance of the

offence committed by one of the witnesses cited in the said private complaints filed by the respondent for the offence punishable under S.420 of

the Indian Penal Code, which were since rejected by the learned trial Magistrate, the petitioner has canvassed the said impugned orders, by way of

seeking direction to the learned trial Magistrate, to take cognizance of the offence committed by the said witness Sundaram Chettiar and another in

the said cases and hence, the present petitions.

Brief facts, as culled out from the returned petitions, filed on behalf of the petitioner, filed under S.190 of the Code of Criminal Procedure Code,

which led to the filing of the above petitions, are stated, as follows:

Both the respondents herein, filed private complaints against the petitioner for the alleged offence punishable under S.138 read with 142 of the

Negotiable Instruments Act, which were taken on the file by the learned Judicial Magistrate No. III, Coimbatore as Calendar case Numbers 103

and 104 of 1990 respectively. It appears from the averments, that the respondents had initiated the said complaints after giving registered notice to

the petitioner but however after he replied the same by repudiating every one of the allegations made therein and that in which, the petitioner seems

to have denied the very issuance of the cheques in question referred to in the said registered notice by narrating all the facts, according to him,

which led to his being cheated by the respondents herein and their father by name Sundaram Chettiar and his Accountant and that therefore, a

commission of an offence punishable under S.420 of the Indian Penal Code, was alleged against the father of the respondents herein in both the

cases. By relying upon the xerox copy of the notice and reply notice above referred, it appears that the petitioner has filed petitions under S.190 of

the Code of Criminal Procedure, in both the cases before the learned trial Magistrate to treat the said petitions as complaints under S.200 Crl.P.C.

and take cognizance of the offence as provided under S.190 of the Code of Criminal Procedure and enquire the same by issuing process to

Sundaram Chettiar and his Accountant. However, the said petitions were returned by the learned Magistrate for compliance of the maintainability.

But it was represented again, by stating that separate complaints were not at all necessary and that the Court as got ample powers to take

cognizance of the offence committed by the respondents/complainants and it was represented for taking cognizance and rendering justice.

However, the same was not accepted by the Court below.

The learned Magistrate, while returning the petition filed in C.C. No. 103 of 1990 on the file of his court, has passed the following order:

S.190 Crl.P.C reveals that the initiation of proceedings for taking cognizance of offence by the Magistrate. The complainant is required to file a

complaint in correct section of law in accordance with the Crl.P.C.

S.190, Crl.P.C. alone cannot stand as a Private Complaint as per law. Moreover, the allegation made in the petition is connected with the case in

C.C. No. 103 of 1990 on the file of this Court and the case is under trial. Under this circumstance, how the ingredients of offence u/s 420 I.P.C. is

fulfilled is to be stated.

Similar order has been passed in the petition filed under S.190 Crl.P.C in C.C. No. 104 of 1990 on the file of the trial Magistrate. These orders

have been passed by the Magistrate on 22.3.1993 and these made the petitioner to invoke the inherent jurisdiction of this Court, as above

referred.

Mr. C. Deivasigamani, learned counsel appearing for the petitioner, while seeking the direction as prayed for, contends, that though the

cognizance of the offence under S.138 read with 142 of the Negotiable Instruments Act, has been taken by the learned trial Magistrate in the

private complaints filed by the respondents herein under S.200 Crl.P.C and process have been issued by assigning Calendar Case Number 103

and 104 of 1990, there is virtually no bar for the learned Magistrate to take cognizance of an offence committed by one of the witnesses cited in

the complaints filed on behalf of the complainants, namely, the respondents herein, for the offence punishable under S. 420, I.P.C. as evident from

the registered notice and the reply and that therefore, the impugned orders of return passed by the learned trial Magistrate are not correct and

causes every prejudice necessitating the directions of this Court as prayed for. To substantiate his contention, learned counsel pointed out, that

though the witness by name Sundaram Chettiar, father of the complainants/respondents in both the cases, was cited as a witnesses has not been

examined on behalf of the respondents. Basing reliance upon the registered notice and the repudiation the averments made therein by means of a

reply issued on behalf of his client, namely, the petitioner herein, learned counsel, wanted the teamed Judicial Magistrate to take cognizance of an

offence punishable under S.420 of the Indian Penal Code during the trial in cases filed as private complaints by the respondents herein.

To appreciate the legal competency of the above petitions, it has become necessary for me to advert to S.190 of the Code of Criminal

Procedure, which runs as follows:

Cognizance of offence by Magistrate: (1) Subject to the provisions of this Chapter, any Magistrate of the second class specialty empowered in this

behalf under sub-S. (2) may take cognizance of any offence:

(a) upon receiving a complaint of facts which constitute such offence:

(b) upon a police report of such facts:

(c) upon information received from any person other than a police officer, or upon this own knowledge, that such offence has been committed.

(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take-cognizance under subset) of such offences as are

within his competence to inquire into or try.

A plain reading of the above section of law makes it clear that any Magistrate of the First Class or of the Second Class specially empowered in this

behalf, as provided in Sub-clause (2) can take the cognizance of any offence upon three conditions which are:

i. upon receiving a complaint of facts constituting the offence:

ii. upon a police report of such facts:

iii. upon information received from any person other than a Police Officer or upon his own knowledge about such offence.

It thus clinches the matter that the cognizance of any offence cannot be taken except upon the three modes above referred. The first two modes

and circumstances enumerated above are out of point for the present cases. For the reasoning that the present petitioner in both the cases has not

come forward with any written complaint or complaint of facts detailing the nature of offence and as to when and in what mode the same has been

committed, so as to make the court to take cognizance and that secondly, no police officer is involved in these cases. For the above said reasons,

learned Magistrate cannot take cognizance of the claimed offence, one under S.420, of the Indian Penal Code, as contended by the learned

counsel for the petitioner. But however, with regard to the third mode provided for in clause (c) of S.190(1), I have no other alternative except to

reject the contention of the learned counsel for the petitioner, for the simple reason that in the private complaints filed on behalf of the respondents

against the petitioner in both the cases for the offence punishable under S.138 read with 142 of the Negotiable Instruments Act, after having taken

cognizance of the same by the learned Magistrate and during the trial of the same, the cognizance of an offence under S.420 I.P.C. against one of

the witnesses cited in the said complaints cannot be taken by any court of law. The simple reason is that if that procedure is followed, in my

considered view, not only the Code has not provided for the same but also, it would create a misjoinder of causes and charges and that even so,

the contents of the notices and the reply notices referred to by the learned counsel, has not complied with any of the modes provided in S.190 of

the Code.

In Mehrab v. Emperor (The Criminal Law Journal Reports No. 26, page 181), a Full Bench of the Sind Judicial Commissioner''s Court, has

held as follows:

Under S.190 of the Criminal Procedure Code, a Magistrate takes cognizance of an offence and not of the offender.

Taking cognizance of a case does not involve any formal action, or action of any kind, but occurs as soon as a Magistrate, as such, applies his

mind to the suspected commission of an offence.

The fact that the Police in a report submitted under S.173 of the Criminal Procedure Code have not mentioned all the parties concerned in the

offence which has been sent up for enquiry, does not debar a Magistrate from taking action against persons other than those mentioned in the

Police report. Once a magistrate has taken cognizance of a case, and proceeds to deal with the evidence brought before him, it is his duty to see

that justice is done with regard to any other person that may be suspected of being concerned in the offence. His action against such persons

would fall under S. 190, clause (b) and not clause (c) of the Code.

In this regard, the Supreme Court in Raghubans Dubey Vs. State of Bihar, at page 1169 has observed as follows:

It seems to us that S.207(a) refers back to S.190(1)(b); in other words, the police report mentioned in S.207(a) is the report mentioned in

S.190(1)(a), and once cognizance is taken under S.190(1)(b), a proceeding is instituted within S.207(a). Hidayatullah, J. speaking for the Court,

while considering the interpretation of S.251-A of the Code of Criminal Procedure in Pravin Chandra Mody Vs. State of Andhra Pradesh, ,

observed as follows:

In our judgment the meaning which is sought to be given to a police report is not correct. In S.190, a distinction is made between the classes of

persons who can start a criminal prosecution. Under the three clause of S.190(1), to which we have already referred, criminal prosecution can be

initiated (i) by a police officer by a report in writing (ii) upon information received from any person other than a police officer upon the Magistrate''s

own knowledge or suspicion, and (iii) upon receiving a complaint of facts. If the report in this case falls within (i) above, than the procedure under

S.251-A Criminal Procedure Code must be followed. If it fails in (ii) or (iii) then the procedure under S.252, Criminal Procedure Code, must be

followed. We are thus concerned to find out whether the report of the police officer in writing in this case can be described as a ""Complaint of

facts"" or as ""Information"" received from any person other than a police officer. The term ""complaint"" in this connection has been defined by the

Code of Criminal Procedure and it means the allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code

that some person, whether known or unknown, has committed an offence, but it does not include ""the report of a police officer.

Thus, the Supreme Court has clearly enunciated the limit of power vested with a Magistrate, to take cognizance of an offence by defining under

what circumstances and in which mode, the cognizance can be taken. Further the word ''complaint'' has been defined by the Supreme Court as

defined in the Code of Criminal Procedure. Importing the above legal rationable declared by the Apex Court to the facts of the instant cases, it is

seen, however, that upon the complaints given by the respondents herein, the earned Judicial Magistrate No. III, Coimbatore, has taken the

cognizance of the offence against the petitioner herein, under S.138 read with 142 of the Negotiable Instruments Act, and that consequently, he

proceeded further with the trial in accordance with the Procedural law. Therefore, the issue to be established and proved before the Court below

was entirely upon the complainants, namely the respondents herein, for the offence alleged against the petitioner, who is the accused in both the

case. It is also worthwhile to note that to substantiate the offence, the notice and reply notice exchanged between the respondents and the

petitioner herein prior to the filing of the complaints, have necessarily to be relied on by the learned Magistrate. Under such circumstances,

nowhere in the Code of Criminal Procedure or in any other law it has been stated that in a trial initiated by the respondent for the offence if any

committed by any one of the witnesses cited on behalf of the complainant, the same can be taken cognizance of and tried not in the same trial and

this is quite unknown to the procedural law. Thus, having considered the very contention made on behalf of the petitioner, in the light of the above

legal ratios, I do not find any merit in both the petitions and they deserve to be dismissed even at the stage of admission itself. Accordingly, both

petitions are dismissed.