Madras High Court
S.Balasubramaniyan vs Krishnan on 12 February, 2015
Author: S.Vaidyanathan
Bench: S.Vaidyanathan
Before the Madurai Bench of Madras High Court Date: 12-02-2015 Coram: The Hon?ble Mr.Justice S.Vaidyanathan Crl.O.P.(MD)No.19189 of 2014 S.Balasubramaniyan .. Petitioner Versus Krishnan .. Respondent Prayer This Criminal Original Petition is filed under Section 482 of Cr.P.C., to call for the records relating to the order, dated 13.5.2014 made in CMP No.2055 of 2012 on the file of the Judicial Magistrate No.I, Karur, set aside the same and consequently to direct the learned Magistrate to take cognizance of the case under Sections 405 and 420 IPC. !For Petitioner : Mr.J.Sulthan Basha for M/s.Ajmal Associates ^For Respondents : Mr.P.Kandasamy Government Advocate (Crl. Side) :ORDER
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 report filed by the concerned police, the learned Magistrate has declined to take cognizance of the complaint, holding that no ingredients for the offences punishable under Sections 405 and 420 were made out.
8. It is true that in order to prevent the accused person from being harassed by a frivolous complaint, the Magistrate is empowered to scrutinize the allegations made in the complaint and find out what material there is to support the allegations made therein and then come to the conclusion as to whether the prima facie case is made out for taking cognizance of the complaint for the offence of which, ingredients are made out. Except stating that the ingredients for the offence under Section 405 and 420 IPC are missing and that the materials available on record reveal that it is only an offence under Section 138 NI Act, the learned Magistrate has not given any reasons nor considered the objections raised by the petitioner regarding the police report, while rejecting the complaint. It is settled law that when sufficient materials or prima facie case is made out for taking cognizance of the offence, it is the bounden duty of the learned Magistrate to take cognizance of the same. In this regard, it is worthwhile to refer a decision of the Hon?ble Supreme Court reported in ?Rupan Deol Bajaj versus Kanwar Pal Singh Gill? reported in 1995 (6) SCC 194, wherein, it has been held as under
in para 28:
?28. Since at the time of taking cognizance the Court has to exercise its judicial discretion it necessarily follows that if in a given case ? as the present one ? the complainant, as the person aggrieved, raises objections to the acceptance of a police report which recommends discharge of the accused and seeks to satisfy the Court that a case for taking cognizance was made out, but the Court overrules such objections, it is just and desirable that the reasons therefore be recorded. Necessity to give reasons which disclose proper appreciation of the issues before the Court needs no emphasis. Reasons introduce clarity and minimise chances of arbitrariness. That necessarily means that recording of reasons will not be necessary when the Court accepts such police report without any demur from the complainant. As the order of the learned Magistrate in the instant case does not contain any reason whatsoever, even though it was passed after hearing the objections of the complainant, it has got to be set aside and we do hereby set it aside. Consequent thereupon, two courses are left open to us; to direct the learned Magistrate to hear the parties afresh on the question of acceptance of the police report and pass a reasoned order or to decide for ourselves whether it is a fit case for taking cognizance under Section 190(1)(b) CrPC. ??
9. For this reason, this Court of the view that the order passed by the learned Magistrate is liable to be set aside.
10. Further, it is the specific case of the complainant 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 out. When such allegations were made by the petitioner, it is for him to prove the same during the trial of the case, for which a reasonable opportunity has to be given to him by the learned Magistrate by taking cognizance of the complaint. The petitioner, in his complaint, roped in the accused for the offences under Sections 405 and 420 IPC since the accused had mens rea, i.e. fraudulent and dishonest intention to cheat him while issuing the cheque which is going to be certainly dishonored as he was aware of the fact that his bank account was already closed. Therefore, being aggrieved by the alleged illegal act of the accused, the petitioner is always at liberty to get the remedy in the manner known to law, which he has rightly done by filing a complaint under Section 200 Cr.P.C. before the learned Magistrate. It is to be noted that for prosecution under Section 138 of Negotiable Instruments Act, the mens rea, i.e. fraudulent or dishonest intention at the time of issuance of cheque is not required to be proved, however, in the case under Indian Penal Code involved, the issue of mens rea is relevant. In the present case, the petitioner wants to proceed against the respondent/accused under the provisions of the Indian Penal Code, for the offences alleged to have been committed by the respondent/accused, for which, he filed the complaint, but the same came to be rejected by the learned Magistrate, which, in my opinion, cannot be sustained.
Accordingly, the Criminal Original Petition is allowed and the order, dated 13.5.2014 in CMP No.2055 of 2012 made by the learned Magistrate, Karur is set aside. The learned Magistrate is directed to take cognizance upon the complaint and try the case in accordance with law.
Suk 12-02-2015 Index: Yes/No Internet: Yes/No S.VAIDYANATHAN, J.
Suk PRE DELIVERY ORDER IN Crl.O.P.(MD)No.19189 of 2014 12-02-2015