T.K. Subramanian and Others vs T.K. Gnanasekaran and Another

Maheswaran, J.—The petitioners invoke the inherent powers of the High Court under S. 482, Crl. P.C. to quash further proceedings in C.C. No. 188 of 1982 on the file of the Judicial First Class Magistrate No. 1, Salem.

The petitioners are accused 1 to 3 in C. C No 188 of 1982. (The petition does not say that they are accused in C.C. No. 188/1982). The accused-petitioners and the respondent, one T.K. Gnanasekaran, are the sons of P.S. Karidaswami Mudaliar. They had shares in Ms. Sugavaneswara Motor Service (Private) Ltd.. which was a registered company. Kandaswami Mudaliar executed a Will on 2nd February, 1977. He bequeathed 100 shares in favour or the complainant. Granasekaran. The management was in the hands or" the first petitioner after the death of Kandaswami Mudaliar in May, 1977. Disputes arose in the family. The petition states that "On 17th January, 1981 both the complainant and Kuppuswamy. the younger brother of the first petitioner, transferred the shares valued at Rs 10,00.1, each in favour of the third petitioner". The petition avers that I. K. Kuppuswami filed O. S. No. 471 of 1981 on the file of the Sub Court, Salem, against the petitioner (it is not stated against which petitioner) for recovery of the amounts mentioned in the share certificate, alleging that his signature has been forged. He has also filed "C.C. No 1 of 1982 on the file of the Additional First Class Magistrate, Salem, against ''he petitioner''). The petitioner further avers that the complainant herein, Gnanasekaran, filed C.C. No. 2146 of 1981 on the file of the Additional First Class Magistrate, Salem, alleging that the petitioner has forged his signature in the share certificate. (A mistake has been committed by the petitioners stating that C.C. No. 2146 of 1981 has been filed on the file of the Additional First Class Magistrate. The complaint filed by the first respondent Gnanasekharan, was not numbered at all), It is seen from the records that the Magistrate forwarded the complaint filed by the first respondent to the police for investigation and report under S. 156(3), Crl. P.C. That complaint was registered as Crime No. 2146/ X/617/81 by the Inspector of Police, Salem town, who sent a report that ''the matter is one of civil nature. The court dropped further action in the matter. The petitioners state that the complainant has again filed another complaint in CC. No. 188 of 1982 on the file of the Judicial First Class Magistrate No. 1 Salem, on the same cause of action and the proceedings in the same should be quashed and the reasons as stated by the petitioners in their petition are-

The proceeding in the lower court is an abuse of process of law and the same has been filed only to harass the petitioners to make them to come to a settlement in O.S. No 470 of 1981 on the file of the Sub-Court, Salem, filed by Kuppuswami ''It is mentioned in paragraph 4 that Kuppuswami filed O.S. 471 of 1981. But now it is stated as O.S. 470 of 1981. It is not clear as to which of the numbers is correct)- (Brackets supplied).

The complaint and the "sworn statement recorded in the case do not make out the ingredients of the offences under Ss. 120B, 420. 488 and 471, I.P C. and the lower court has not applied its judicial mind before taking cognizance of the case.

The complaint does not show the part played by each of the accused and how each one of them is liable and the court has erred in taking cognizance under S. 120-B, I.P.C.

''The complaint is made without any proof and a family dispute has been coloured as a criminal case just to harass the petitioners and to tarnish their reputation in the public.

The whole proceeding in the lower court is ab initio void and is without jurisdiction.

The facts relevant for disposal of this petition are few and may be stated. The first petitioner-first , accused, T. K. Subramanian, is the elder brother of T. K. Gnanasekaran. The other two petitioners, Alagarasan and Thillainathan. are the sons of the first petitioner, first accused. Kandaswami Mudaliar, father of petitioners and first respondent executed a Will on 2nd February, 1977, whereby he bequeathed 100 shares to Gnanaskaran, the complainant-first respondent. According to the complainant, he requested the first accused to transfer 100 shares in his name. But, he received a reply that the shares had already been transferred in favour of the complainant on 7th September, 1980 and the very same shares have been again transferred in the name of the third accused, who is none other than the son of the first accused. The case of the complainant was that his signature had been forged, but the petitioners would say that they have not forged the signature of the complainant and that the complainant himself had transferred the shares and had signed the share certificate in the presence of respectable witnesses. The complainant first respondent filed a complaint before the Judicial First Class Magistrate, Salem, which was forwarded to the Inspector of Police, Salem town, Crime, for registering a case and for investigation under S. 156(3) of the Crl. P. C. on 10th September, 1981. The offences alleged against the accused petitioners were under Ss. 120-B, 420, 468 and 471, I.P.C. The police registered it as Crime No. 2146/X/6l7/81. On receipt of the police report ''hat the dispute in question was of civil nature, the Magistrate passed the following laconic order :- " Lodge the F.I.R." The complainant has preferred another complaint almost with the same allegations against the accused-petitioners as in Crime No. 2146/ X/61//81. Though six grounds have been urged for quashing the proceedings which have been extracted above, the main contention of the Learned Counsel for the petitioner is that a second complaint on the same facts cannot be entertained when a previous complaint has been dismissed under S. 203 of the Crl. P.C. Per contra, it is argued for the first respondent that the complaint was not dismissed under S. 203 of the Crl. P.C. and that the learned Magistrate did not take cognizance of the offence at all. It is necessary to examine these rival contentions.

On the complaint in Crime No. 2146/X/ 617/81 the Magistrate ordered investigation under S. 156(3) of the Crl. In H.S. Bains v. State Supreme Court pointed out that a Magistrate who, on receipt of a complaint orders an investigation under S. 156(3) of the Crl. P.C, and receives a police report under S. 173(1), may, thereafter do one of the three things- (l) he may decide whether there is no sufficient ground for proceeding further and drop action; (2) he may take cognizance of the offence under S. 190(1)(b) on the basis of the police report and issue process; this he may do without being bound in any manner by the conclusion arrived at by the police in their report; (3) he may take cognizance of the offence under S. 190(1)(a) on the basis of the original complaint and proceed to examine upon oath the complainant and his witnesses under S. 200. If he adopts the third alternative he may hold or direct an enquiry under S. 202, if he thinks fit. Thereafter, he may dismiss the complaint or issue process, as the case may be. In this case the Magistrate who ordered enquiry under S. 156(3) received the report of the police officer that the dispute is of civil nature and the Magistrate passed the order- ''Lodge the F.I.R. What is contended by Mr. John Arthur counsel for the petitioners, is that this order amounted to a dismissal under S. 203, Crl. P.C. and the proper remedy for the first respondent is to prefer a revision against that order to High Court and not to file a fresh complaint on the same facts. As earlier pointed out, Mr. G. Ramaswami, Learned Counsel for the first respondent contended that the Magistrate has not taken cognizance of the offences and that the order ''Lodge the F.I R.'' cannot be said to be an order passed under S. 203, Crl. P.C. and therefore, there is no bar for preferring a second complaint.

In Superintendent and Remembrancer of Legal Affairs Vs. Abani Kumar Banerjee, Das Gupta, J. observed-

What is ''taking cognizance'' has not been defined in the Crl. P.C. and I have no desire now to attempt to define it. It seems to me clear, however, that before it can be said that any magistrate has taken cognizance of any offence under S. 190(1)(a), Crl. P.C. he must not only have applied his mind to the contents of the petition, but he must have done so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter, proceeding under S. 200 and thereafter sending it for inquiry and report under S. 202. When the Magistrate applies his mind not for the purpose of proceeding under the subsequent sections of this Chapter, but for taking action of some other kind, e.g. ordering investigation under S. 156(3), or issuing a search warrant for !he purpose of the investigation, he cannot be said to have taken cognizance of the offence.

This case was cited with approval by their Lordships of the Supreme Court in R.R. Chari Vs. The State of Uttar Pradesh, , In Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, the Supreme Court observed-

But from the scheme of the Code, the content and marginal heading of S. 190 and the caption of Chapter XIV under which Ss. 196 to 199 occur, it is clear that a case can be said to be instituted in a court only when the court takes cognizance of the offence alleged therein. The ways in which such cognizance can be taken are set out in clauses (a) (b) and (c) of S. 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted, and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under S. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of S. 190(1)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under S. 156(3), he cannot be said to have taken cognizance of any offence.

Therefore, it is clear that when the Magistrate orders investigation under S. 156 (3) of the Crl. P.C. he cannot be said to have taken cognizance of the offence. In the instant case, the Magistrate did not apply his mind to the complaint in Crime No. 2146/X/6l7/81 for deciding whether or not there is sufficient ground for proceeding. He ordered only an investigation under S. 156 (3) of the Crl. P.C. In the case of a complaint in respect of the cognizance of an offence, the Magistrate can invoke S. 156 (3) before he takes cognizance of the offence under S. 190(1)(a) of the Code. In the present case, the Magistrate did not embark upon the procedure under Chapter XV of the Crl. P.C. He did not examine the complainant and the witnesses under S. 200, Crl. P.C. The question of dismissing the complaint under S. 203 , Crl. P.C. therefore, did not arise. Instead of proceeding under Chapter XV, the Magistrate ordered investigation by police under S. 156 (3) and received a report and lodged the F.I.R. The argument of the counsel for the petitioners that the order ''Lodge the F.I.R.'' will amount to dismissal under S. 203, Crl. P.C. is devoid of substance and must fail. As the complaint in crime No. 2146/X/617/81 has not been dismissed under S. 203 of the Crl. P.C. there is no prohibition for the entertainment of a 6econd complaint.

My attention was invited by the Learned Counsel for petitioners to a ruling in Bindeshwari Prasad Singh Vs. Kali Singh, where their Lordships of the Supreme Court observed that a second complaint can lie only on fresh facts or even on the previous facts only if a special case it made out. That was a case where the Magistrate dismissed a complaint under S. 203, Crl. P.C. pa the ground that the complainant was absent and did not show any interest in the enquiry ordered by the court and recalled that order and took cognizance of the case and summoned the accused later and issued processes. The Supreme Court held that the order, even if there be one, recalling the order dismissing the complaint, was entirely without jurisdiction and that subsequent proceedings calling upon the said order would fall to the ground including the order summoning the accused which must be deemed to be a nullity and destitute of any legal effect. The counsel for the respondent therein contended that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. But the Supreme Court did not agree with that contention as here was no fresh complaint and in that context the Supreme Court observed that a second complaint cause only on fresh faces or even on previous, facts only if a special case is made out. Such, however, is not the case here. There was no resort to Chapter XV at all. There is BO taking cognizance of the offence and there, is no dismissal of the complaint under S. 203 , Crl P.C Further, as observed by the Supreme Court in Devarapalli Lakshminarayana Reddy and Others Vs. V. Narayana Reddy and Others, "a case can be said to be institute Dina court only when the court take cognizance of the offence alleged therein." In this case, it cannot be said that a case was instituted. Under those circumstances, a second complaint is clearly entertainable.

The first ground, namely, that criminal complaint is filed to make the petitioners-accused to come to a settlement in O.S. 470 of 1981 on the file of the Sub-Court, Salem, filed by Kuppuswami, is without substance as it is-opt shown as to how the complainant, Gnanasekaran, is interested in the suit filed by Kuppuswami.

The "second contention, namely, that the complaint and the sworn statement recorded in the case do not show that the ingredients of the offences under Ss. 120B, 420, 468 and 471, I.P.C. have been made out, is again a contention that has to be decided by the trial court.

The third ground that the lower court ''erred in taking cognizance under S. 120-B, I.P.C. is also a matter that has to be decided by the court which took cognizance'' of the offence.

The fourth ground that the dispute is really of civil nature is again to be decided by the court below. As regards the fifth ground that the proceedings in the lower court are ab initio void and without jurisdiction, it has not-been shown as to how the proceedings are ab initio void.

The result is that this petition which is devoid of norms is dismissed.