IMPORTANT POINT
Petitioner wants to proceed against respondent/accused under provisions of IPC, for offences alleged to committed by respondent/accused, for which he filed complaint, but same came to be rejected by Magistrate, which cannot be sustained.

S.Vaidyanathan, J.—By order, dated order, dated 13.5.2014 made in CMP No.2055 of 2012, the Judicial Magistrate No.I, Karur has declined to take cognizance of the complaint made by the petitioner under Section 200 Cr.P.C., holding that no ingredients for the offences under Sections 405 and 420 IPC were made out, but the materials available on record reveal that it is only an offence under Section 138 of Negotiable Instruments Act and not under Indian Penal Code.

2. Aggrieved over the above said order, the petitioner has come forward with the present petition.

3. The sum and substance of the case of the petitioner is that the respondent having availed the loan for a sum of Rs.15,00,000/- from the petitioner, issued a cheque bearing No.1711193, dated 23.3.2011 in order to repay the same. The said cheque was presented for encashment by the petitioner before the City Union Bank, but it was returned with an endorsement “account closed”. Consequently, the petitioner filed a private complaint against the petitioner under Section 200 Cr.P.C. before the learned jurisdictional Magistrate, for the offences under Sections 405 and 420 IPC. The learned Magistrate registered the case, recorded the sworn statement of the petitioner and referred the matter to the concerned police for investigation. After investigation, the police has filed a negative report, to which, the petitioner raised objections. Thereafter, the learned Magistrate, passed the above said order, which is question in this petition.

4. Assailing the order of the learned Magistrate, the learned counsel appearing of the petitioner would contend that while entertaining the complaint under Section 200 Cr.P.C., it is obligatory upon the learned Magistrate to enquire whether there are prima facie allegations were made out against the accused to take cognizance of the offence, however, the learned Magistrate has not considered the allegation that the respondent/accused had issued the cheque with a fraudulent intention to cheat the complainant having fully aware the fact that by the time, the cheque was issued, his account in the concerned bank was already closed, by which he committed criminal breach of trust and thereby the ingredients of Sections 405 and 420 IPC were prima facie made by the petitioner. He also contended that instead of taking cognizance of the complaint, he determined the issue and dismissed the complaint on the ground that no ingredients of the offences punishable under IPC were made out and it is only under Section 138 of Negotiable Instruments Act, which is unreasonable and liable to be set aside.

5. Heard both sides and perused the documents available on record.

6. It is settled position that whenever a private complaint is filed before the learned Magistrate, he got two options. The first option is to refer the complaint, without taking cognizance, under Section 156(3) Cr.P.C. and the second option is to take cognizance and to proceed further. If the Magistrate takes cognizance, he has to record the statement of the complainant under Section 200 Cr.P.C. and further to record the statement of witnesses, if any, under Section 202(2) Cr.P.C. Thereafter, it is for him to decide whether to issue process for appearance of the accused or not. If he decides that there is no case made out, requiring to issue process to the accused, he would dismiss the complaint under Section 203 Cr.P.C. Otherwise, he would issue process under Section 204 Cr.P.C.

7. In the present case, the petitioner has filed the complaint under Section 200 Cr.P.C. before the learned Magistrate, alleging that the respondent/accused has committed criminal breach of trust and fraudulently induced the petitioner by issuing the cheque in order to repay the amount due to him, knowing full well that his bank account was already closed even prior to issuing the cheque, therefore, the respondent/accused is liable to be prosecuted for the offences under Sections 405 and 420 IPC. However, while accepting the re