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2010 Supreme(Mad) 5467
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE T. MATHIVANAN
V. Savitha Devi & Others
Versus
Dr. S. Kalaikumar
Crl.O.P No.23702 of 2010 & M.P.No.1 & 2 of 2010
Decided On : 16-12-2010
For the Petitioner:C.S. Dhanasekaran, Advocate.
For the Respondents:R. Murali, Advocate.
The main legal point established in the judgment is that the cognisance of offences under Sections 209, 211 r/w 109 of IPC must be in accordance with the provisions of Section 195(1)(b)(i) of Cr.P.C., and the Court cannot take cognisance without a written complaint by the concerned Court or a duly authorised officer.
Headnote:
Inherent Jurisdiction - Quashing of Proceedings - Section 482 Cr.P.C. - Section 209, 211 r/w 109 IPC - Section 195(1)(b)(i) of Cr.P.C.
Fact of the Case:
The petitioners, accused in a case, sought to quash the proceedings against them under Section 209, 211 r/w 109 of IPC. The respondent had filed a complaint under Section 195(1)(b)(i) of Cr.P.C. before the Learned Judicial Magistrate No.II, Coimbatore, with a prayer to prefer a complaint against the petitioners for the said offences.
Finding of the Court:
The court found that the cognisance of the offence under Sections 209, 211 r/w 109 of IPC taken by the Learned Judicial Magistrate-II, Coimbatore was in total negation of the principle of law envisaged under Section 195(1)(b)(i) of Cr.P.C. The court held that the magistrate did not have jurisdiction to take cognisance of the offence as there was no complaint in writing either by him or by any other Court, or by any other duly authorised officer.
Issues: The main issue was whether the cognisance of the offence under Sections 209, 211 r/w 109 of IPC taken by the Learned Judicial Magistrate-II, Coimbatore was in accordance with the provisions of Section 195(1)(b)(i) of Cr.P.C.
Ratio Decidendi: The court emphasized that Section 195(1)(b)(i) of Cr.P.C. bars the Court from taking cognisance of offences punishable under Sections 209, 211 of IPC when such offence is alleged to have been committed in or in relation to any proceeding in any Court, except on the complaint in writing of that Court or of some other Court to which that Court is subordinate.
Final Decision: The court quashed the case in CC.No.855 of 2010 on the file of the Learned Judicial Magistrate-II, Coimbatore, and disposed of the petition.
1. Invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. the petitioners herein have come forward with this petition to call for the records in connection with the case in CC.No.855 of 2010 on the file of the Learned Judicial Magistrate No.II, Coimbatore, and to quash the proceedings.
2. The facts which are absolutely necessary for the disposal of this petition may be summarised briefly as follows;
3. The petitioners being the accused in the case in CC.No.855 of 2010 on the file of the Learned Judicial Magistrate No.II, Coimbatore are facing the charges under Section 209, 211 r/w 109 of IPC. The first petitioner is the wife of the second petitioner. The third petitioner is the father of the first petitioner. The fourth petitioner is an associate of the petitioners 1 to 3. Petitioners 1 and 2 are running a petrol bunk under the name and style of M/s. Samyuktha Corporation and the third respondent being the father of the first respondent has been assisting them in their business.
4. That on 05.07.2006, the petitioners 1 and 2 in the presence of the third petitioner had borrowed a sum of Rs.5lakhs from the respondent by way of a pay order bearing No.002179 drawn on Bank of India, R.S.Puram Branch, Coimbatore. Again on 11.07.2007 they had borrowed another sum of Rs.4,50,000/-from the respondent. In order to repay the said amount they had also issued two cheques bearing No.113583 dated 04.07.2007 and no.862088 dated 25.07.2007. Since the above said two cheques were bounced back, the respondent had filed two cases viz., CC.No.876 of 2007 before the Learned Judicial Magistrate No.II, Coimbatore and CC.No.117 of 2008 before the Learned Judicial Magistrate No.VII, Coimbatore, to prosecute the petitioners 1 and 2 under Section 138 of Negotiable Instruments Act.
5. When the matter stood thus that on 27.03.2008 on the basis of a complaint lodged by the first petitioner herein a case in Crime No.291 of 2008 under Sections 147, 342, 506 (ii) and 384 of IPC was registered against the respondent and 13 others. After thorough investigation the investigating officer came to a conclusion that the charges levelled against the respondent were false and untrue, and therefore, the investigating officer had referred the case as mistake of fact and the referred charge sheet was also sent to the Court.
6. The petitioners were aware of the final report submitted by the investigating officer in the case in Crime No.291 of 2008 and even in spite of that the petitioner never chosen to take further action. In the first information of the case in Crime No.291 of 2008, the first petitioner had alleged that the respondent and others had taken away the cheques from her possession forcibly on 17.03.2007. Since the case was referred as mistake of fact and the referred charge sheet to that effect was also filed before the competent Court of Law it is very clear that the first petitioner had preferred a false complaint knowing fully well that there was no just on lawful ground. Hence, the respondent had lodged a private complaint before the Learned Judicial Magistrate No.II, Coimbatore under Section 195 (1)(b)(i) of Cr.P.C. with a prayer to prefer a complaint against the petitioners/accused 1 to 4 for the offences punishable under Sections 209, 211 r/w 109 of IPC.
7. After receiving the complaint the Learned Judicial Magistrate No.II, Coimbatore has taken cognisance of the offences under Sections 209, 211 r/w 109 IPC in CC.No.855 of 2010 on his file. In the above back drop the petitioners have come forward with this petition to quash the case in CC.No.855 of 2010 on the ground that the Learned Judicial Magistrate No.II, Coimbatore instead of proceeding under Section 195(1)(b)(i) of Cr.P.C. has erroneously taken cognisance of the offence under Sections 209, 211 r/w 109 IPC.
8. Heard both sides.
9. It is obvious that the respondent herein has filed a complaint under Section 195(1)(b) (i) of Cr.P.C. before the Learned Judicial Magist
