S. Manian vs P.M. Nachimuthu

The accused in Calendar Case No. 355 of 1997 on the file of the Judicial Magistrate, Palladam is the revision petitioner. The respondent in this

revision is the complainant therein. That was a private complaint filed u/s 200 of the Code of Criminal Procedure alleging an offence u/s 138 of the

Negotiable Instruments Act. Pending trial the accused filed Crl.M.P.No. 3196 of 1997 u/s 245 of the Code of Criminal Procedure to discharge

him from that proceedings. That application was dismissed on merits. Hence the present revision. Heard Mr. Su. Srinivasan learned counsel

appearing for the petitioner and Mr.S.Doraiswami learned counsel appearing for the respondent. I also directed Mr.R.Karthikeyan learned

Government Advocate appearing on the criminal side 10 assist the Court and he readily assisted.

The sum and substance of the argument of. the learned counsel for the petitioner is that the complaint referred to earlier is actually presented by

the Power of Attorney of the complainant and since the Code of Criminal Procedure does not recognise a Power Agent of the complainant to

present the complaint, the Magistrate had erred in taking cognizance of the offence on such a complaint. The learned counsel would state that

under the Code of Criminal Procedure a private complaint must be lodged only by a party namely, the complainant himself/herself. Inasmuch as

Section 200 of the Code of Criminal Procedure commands the Magistrate taking cognizance of such an offence, to examine the complainant on

bath, it has to be necessarily held that except the complainant himself/herself, nobody-else can file a complaint. The learned counsel would also add

that the Power Agent in this case cannot be equated to a ''pleader'' and in any event if he is equated to a pleader, then he cannot give any evidence

in court. Inasmuch as the sworn statement of the Power Agent has been recorded in this case and there being no sworn statement of the

complainant himself, the Court erred in taking cognizance of the case on such materials. The learned counsel would conclude his argument by

stating that such an illegal act of taking cognizance of the case is an irregularity which would vitiate the entire proceedings and it cannot be called as

a curable irregularity.

Mr.S.Doraiswami learned counsel appearing for the respondent would contend that though the cause title in the complaint appears to be a

misleading one, yet factually the complaint had been signed only by the complainant though the complaint was presented by the Power Agent. Any

defect in the cause title is capable of being amended and for this purpose he relied upon the judgment of this Court in M/s. Egmore Benefit Society

Ltd. Vs. K. Balasigamani, Proprietor Ramu and Company Chennai-18, . The learned counsel would also contend that the grievance of the revision

petitioner before the lower Court was very limited, namely the complaint presented in the Court by the Power Agent is not maintainable and all the

other arguments of the learned counsel raised here were not even raised before the lower Court. Therefore the learned counsel would contend that

this Court may not be inclined to go into the other arguments made by the learned counsel for the petitioner on other issues.

Mr.R.Karthikeyan learned Government Advocate on the criminal side, who assisted this Court on direction, brought to my notice Rule 111 of

the Criminal Rules of Practice. This rule, according to him, enables the complaint being presented by a party in person or by his pleader. Then he

referred to Section 2 (q) of the Code of Criminal Procedure, wherein the word ''pleader'' is defined. This, according to him, means not only

''Pleader'', ''Vakil'' or ''Attorney'' but also ''any other person''. The Power Agent would come within the definition of ''any other person''. The

learned Government Advocate would also contend that u/s 190 (1) (a) of the Code of Criminal Procedure a Magistrate is empowered to take

cognizance of an offence on a complaint and section 200 of the Code of Criminal Procedure prescribes the procedure to be followed thereupon.

Therefore the contention of the learned Government Advocate is that the complaint as presented by the Power Agent is maintainable.

In the light of the arguments advanced by the learned counsel on either side, I perused the complaint and the other materials on record produced

before me. The cause title of the complaint is:

IN THE COURT OF THE JUDICIAL MAGISTRATE PALLADAM

C.C.No.355 of 1997

Mr.P.M.Nachimuthu (Age 43), S/o Marappa Gounder, M/s.Vigneshkumar Spinning Mills (P) Ltd., Near Kamanaickenpalayam, Sulthanpet 641

Kamanaickenpalayam police limit, Coimbatore District, Tamil Nadu rep. by Mr.K.Krishnan (Age 62), S/o Kuppusamy, C/o Vigneshkumar

Spinning Mills (P) Ltd., 99 b/4. Cochin Prontier Road, Chettipalayam Palladam, Palladam Police limits

..Complainant

Vs.

Mr.S.Manian (35), S/o Subbana Gounder, Proprietor of ''Lakshmi Priya Textiles'', Vayakkadu Paramasivampalayam, Pallapalayam Post,

Mangalam Via. Kamanaickenpalayam police limit.

.....Accused

From a cursory look of the cause title as extracted above, it is no doubt true that it appears that the complainant is represented by his Power

Agent. The learned counsel for the petitioner had enclosed in the typed set, a xerox copy of the complaint served on his client through Court. At

the fool of the complaint at page 3 under the caption ''complainant'' it is clearly seen that the complainant himself had signed as found hereunder:

Complainant.

For Vigneshkumar Spinning Mills (P) Ltd., Sd/-P.M.Nachimuthu, Managing Director Dated: 17.07.1997

Therefore there cannot be any doubt that the complaint was signed by the complainant himself. It may also be true that in the cause title the

complainant had not described himself as the Managing Director of the company in whose name the cheque was given which was later on

dishonoured. But the signature of the complainant is in his capacity as the Managing Director of the complainant company. This according to me is

a misdescription of the complainant in the complaint and that can always be corrected. For this, there is an authority of law of this Court in M/s.

Egmore Benefit Society Ltd. Vs. K. Balasigamani, Proprietor Ramu and Company Chennai-18, At the risk of repetition, I would reiterate that

inasmuch as the complaint has been signed properly and legally by the complainant himself any misdescription in the cause title would not be taken

note of to defeat the very prosecution itself.

Going to the next aspect of the case, namely the complaint having been presented by the Power Agent, which fact is not disputed by the learned

counsel for the respondent, I looked into the various proposition of law brought to my notice by the learned Government Advocate. Rule 111 of

the Criminal Rules of Practice states that ""all complaints, applications etc. shall be presented to the Magistrate by a party in person or by his

pleader"". The first limb of this Rule does not apply at all to the case on hand. Admittedly, the party to the complaint, namely the complainant had

not presented the complaint. As rightly pointed out by the learned Government Advocate the definition of ''Pleader'' as found in Section 2 (q) of

the Code of Criminal Procedure throws considerable light as to the persons who can present a complaint. Rule 111 of the Criminal Rules of

Practice uses the word ''Pleader'', apart from the party in person, as a person entitled to present a complaint. ''Pleader'' is defined u/s 2 (q) of the

Code of Criminal Procedure as follows:

Pleader"", when used with reference to any proceedings in any Court, means a person authorised by or under any law for the time being in force,

to practice in such Court, and includes any other person appointed with the permission of the Court to act in such proceedings;

This definition again contains two distinct parts. The first part deals with the person authorised by or under any law for time being in force, to

practice in such Court. The first limb is not attracted to the case on hand since admittedly the Power Agent of the complainant is not authorised by

any provision of law to practice in any Court. However the second limb of the definition of ''pleader'' is of considerable importance to resolve the

dispute between the parties here. In the second limb, the word ''pleader'' is defined to include ''any other person'' appointed with the permission of

the Court to act in such proceeding. The person coming under the first limb must be a person authorised to practice in such Court which means a

Vakil, Attorney or a lawyer. A person coming under the second limb need not necessarily be a Vakil or an Attorney or a lawyer. He may be a non

lawyer as well. The word used in the second limb of the definition of the word ''pleader'' is ''to act in such proceedings''. To act in such

proceeding'' would take in itself all things that requires to be done in such proceedings on behalf of the complainant. When the law recognises the

right of a pleader to present a complaint in court on behalf of the complainant, then equally the person coming under the words ''any other person''

occurring in the second limb of the definition of ''pleader'' as found in section 2 (q) of the Code of Criminal Procedure, can also present the

complaint before the court, of ''course subject to he being permitted. In Emperor Vs. Jaffar Cassum Moosa, it was held that the words ''any other

person'' occurring in the definition of a ''pleader'' are not restricted in their meaning and are not limited to a person authorised by law to appear in a

particular court and hence constituted attorney can appear for the accused. In Das Sami v. Kupendran, 1967 M.L.J. (Crl.) 68 it was held, relying

upon section 4 (1) (r) of the old Code of Criminal Procedure corresponding to section 2 (q) of the new Code, that a person, who is not an

''advocate, ''vakil'' or ''attorney'' requires permission of the court to appear and such permission must be obtained anterior in point of time before

the actual appearance.

As rightly contended by the learned counsel for the petitioner on the day when the complaint was presented by the Power Agent, the power

document executed by the complainant in favour of the Power Agent was not presented in Court. The complaint does not even whisper about

there being a power document, No doubt the power document is dated 17.7.1997 and the complaint is also dated 17.7.1997. In the face of the

above factual situation namely, the absence of the power document in court on the day when the complaint came to be presented by the power

agent and the absence of prior order from the court permitting the power agent to present the complaint, the question that comes up for

consideration now is, whether the Magistrate had committed any illegality in taking cognizance of the offence on the basis of such a complaint. The

answer would be against the revision petitioner and the answer is found in Section 460 of the Code of Criminal Procedure. Section 460 of the

Code of Criminal Procedure speaks about irregularities, which do not vitiate the proceedings. Section 461 speaks about irregularities, which do

vitiate the proceedings. u/s 460 (e) of the Code of Criminal Procedure, if a Magistrate, who is not empowered by law to take cognizance of an

offence under clause (a) or clause (b) of sub section (1) of section 190, takes cognizance of an offence, then his act of taking such cognizance

would not vitiate the proceedings. However the learned counsel''s argument is that Section 460 of the Code of Criminal Procedure would not

apply to the case on hand since the accused has not disputed the power of the Magistrate to take cognizance of an offence on a private complaint.

He would state that inasmuch as the power of the Court is not disputed to take cognizance and there is only an illegality in presenting the complaint,

such an illegality cannot be brought u/s 460 (e) of the Code of Criminal procedure. I am afraid I cannot agree with the learned counsel on this

proposition of law as contended by him. A Magistrate is authorised to take cognizance of an offence on a private complaint u/s 190 (1) (a) of the

Code of Criminal Procedure. If he has to exercise the power, then the complaint should be presented before him in a legal manner. In the case on

hand the complaint was not presented in a manner prescribed by law namely, after obtaining prior permission from the court. If that is so, the court

is not empowered by law to take cognizance of the offence on that complaint, but yet it has been done. Under these circumstances, I am of the

firm opinion that Section 460 (e) of the Code of Criminal Procedure definitely comes in handy to save the complaint on the basis of which initially

the Magistrate took cognizance of the offence. Though the Magistrate in this case had taken cognizance of the offence on the complaint in breach

of law namely, section 190 (1) (a) read with section 2 (q) of the Code of Criminal Procedure and Rule 111 of the Criminal Rules of Practice, yet in

view of section 460 (e) of the Code of Criminal Procedure, this illegality would not have the effect of vitiating the proceedings itself. The court, by

dismissing the discharge petition, appears to have ratified the act of the power agent of the complainant presenting the complaint.

For all the reasons stated above I am of the opinion that the lower Court had not committed any error at all in holding that the complaint had

been presented properly. All the other arguments advanced by the learned counsel as to whether in the absence of a sworn statement of the

complainant himself, could process be issued by the Court is left open to be decided at an appropriate stage if so raised by the accused, If such

issue is raised, then it is made clear that this Court had not dealt with that issue or any other connected issues, which may arise therefrom and the

Court before whom those Issues are raised, is directed to consider those points without in any way being influenced by anything said by this Court

in this judgment. With the above observations the revision is dismissed. Consequently the connected Crl.R.C. is dismissed.