Madras High Court
M.Vijayakumar vs A.Leo Charles on 7 February, 2013
Author: A.Arumughaswamy
Bench: A.Arumughaswamy
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 7.02.2013 CORAM THE HON'BLE MR.JUSTICE A.ARUMUGHASWAMY CRL.O.P.No.13267 of 2012 and M.P.No.1 of 2012 M.Vijayakumar ... Petitioner/Accused .. Vs .. A.Leo Charles ... Respondent/complainant Prayer:- Criminal Original Petition filed under Section 482 of the Code of Criminal Procedure, to call for the records and quash the C.C.No.384 of 2011 on the file of the Judicial Magistrate No.II, Salem. For Petitioner : Mr.R.Mubarak Basha. For Respondent : Mr.K.V.Sathyamurthy and Mr.K.Bijai Sundar ORDER
This petitioner is the Accused in C.C.No.384 of 2011 on the file of the Judicial Magistrate No.II, Salem and he has come forward with the present petition to quash the proceedings.
2. The respondent filed a private complaint under Section 200 Cr.P.C. against the petitioner for the offence under Section 211 of IPC. The averments in the complaint are as follows:-The complainant is the Managing Partner of a company which is engaged in the activity of construction of building and other related works. The accused has assisted the complainant in the arbitration proceedings. While doing so, the accused has given the complainant's address to IRDA authorities and also used the complainant's office and made personal gains. Further, the accused attempted to steal some of the files from the complainant's office. When the complainant informed the accused that he did not require the services of the accused any more, he demanded a sum of Rs.2,50,000/- for his assistance and services done in arbitral proceedings. When the same was refused by the complainant, the accused preferred a complaint against the complainant for alleged theft of a sum of Rs.1,900/- and a camera worth Rs.4500/-. After enquiry, the Suramangalam police came to a conclusion that the complaint of the accused is false and the police themselves filed a case in C.C.No.168 of 2010 against the accused. Then the accused filed Crl.O.P.No.19968 of 2010 to quash the case in C.C.NO.168 of 2010 and this Court had quashed the proceedings giving liberty to the complainant to institute separate complaint against the accused invoking Section 211 IPC. Hence, the complainant has filed a complaint under Section 211 of IPC before the Judicial Magistrate, Salem and the same was taken cognizance by the learned Magistrate in C.C.No.384 of 2011. Against which the present petition has been filed.
3. Learned counsel for the petitioner contended that the learned Judicial Magistrate No.II, Salem erred in taking cognizance of the complaint in C.C.No.384 of 2011, since there is a bar under Section 195(1)(b)(i) of Cr.P.C for taking cognizance under Section 211 IPC. Further, learned counsel for the petitioner contended that initially, a case has been registered in Cr.No.2221 of 2009 on the basis of the complaint given by the petitioner. Instead of tracing the culprits, the Inspector of Police, Suramangalam Police Staion filed a charge sheet against the petitioner under Section 211 IPC and it was taken cognizance by way of C.C.No.168/2010. Thereafter, the petitioner filed Crl.O.P.No.19968 of 2010 before this Court and this Court, quashed the proceedings granting liberty to the respondent to institute a complaint. Taking advantage of the liberty, the respondent herein has filed a private complaint against the petitioner only as a counter blast with a view to harass the petitioner. Since no remedy is available for the petitioner to bring the real culprit before the Court of law, learned counsel for the petitioner prayed that the proceedings against the petitioner has to be quashed.
4. Learned counsel appearing on behalf of the respondent contended that the complaint filed by the complainant for an offence under Section 211 Cr.P.C is maintainable in law since it makes out a clear case against the petitioner/accused. Further, this Court had given permission to the respondent to file a separate complaint. He also contended that in this case there is no bar under Section 195(1) Cr.P.C and the learned Magistrate is justified in taking cognizance of the offence.
5. This Court considered the submissions and perused the records.
6. The present petitioner has given a complaint on the file of the Inspector of Police, Suramangalam, Salem City, as against the respondent herein for theft of a sum of Rs.1,900/- and a Kodak camera worth Rs.4500/- and the same was registered in Cr.No.2221 of 2009 for the offence under Section 380 of IPC. After conducting detailed investigation, it was found to be a false case and has filed a charge sheet for the offence under Section 211 IPC against the petitioner for giving false complaint. Subsequently, the petitioner approached this Court by way of Crl.O.P.No.19968 of 2010 and this Court quashed the proceedings in C.C.No.168 of 2010 by order dated 22.09.2010 on the ground that on investigation, if the respondent found that it is a false complaint, they ought to have forwarded a final report stating that it is a mistake of fact or complaint is not true. Instead of that, without obtaining a complaint from the alleged accused, the respondent ought not to have proceeded the same complaint to file a report under Section 211 IPC. The offence under Section 211 IPC is non-cognizable, bailable and non compoundable. To invoke Section 211 IPC, a complaint has to be filed before the Court by the accused himself. Considering the above, liberty is given to the accused person in the original crime number to institute a complaint. Therefore, the respondent herein filed a private complaint under Section 211 IPC and the same was taken cognizance by the Judicial Magistrate No.II, Salem by way of C.C.No.384 of 2011. Thereafter, the petitioner approached this Court by way of Crl.O.P.No.2720 of 2011 for a direction to investigate the complaint of the petitioner dated 11.10.2010 by the CBCID. This Court by order dated 7.2.2011 disposed of the said petition giving liberty to the petitioner to approach the jurisdictional police if he is aggrieved or any other offence is committed by the accused.
7. The contention of the learned counsel appearing for the petitioner is that as per Section 195 of Cr.P.C. the respondent is not entitled to file a complaint against the petitioner. Therefore, the police ought to have filed referred charge sheet. Hence, he prays that the complaint has to be quashed.
8. The contention of the learned counsel appearing for the complainant is that the respondent has filed private complaint and he is the accused in the earlier complaint given by the petitioner and after due enquiry the investigating officer has come to the conclusion that the present quash petitioner has given a false complaint against the respondent and that is the reason he has filed a final report against which the quash petition filed by the quash petitioner was rightly quashed. Hence, he prays that the present quash petition has to be dismissed.
9. As I have already pointed out the present quash petitioner has filed a quash petition in Crl.O.P.No.19968 of 2010 and this Court by order dated 22.09.2010 quashed the proceedings in C.C.No.168 of 2010 and in the same order this Court permitted the complainant to file private complaint if at all he is aggrieved against the complaint. Thereafter, he has filed a private complaint and it was taken cognizance by the learned Judicial Magistrate by way of C.C.No.384 of 2011. Section 195(1)(b)(i) Cr.P.C. reads as follows:-
"(1) No court shall take cognizance-
(a) .... (i)....(iii).. (iii)...
(b)(i) Of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, sections 193 to 196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any court, or ......."
10. Under such circumstances, at present, the complaint in C.C.No.384 of 2011 on the file of the Judicial Magistrate No.II, Salem cannot be quashed. The petition is dismissed. The learned Judicial Magistrate No.II, Salem is directed to proceed with the trial as per the procedure known to law. Consequently, M.P.No.1 of 2012 is closed.
7.02.2013 gr.
To
1. The Judicial Magistrate No.II, Salem.
2. The Public Prosecutor, High Court, Madras.
A.ARUMUGHASWAMY,J.
gr.
PRE DELIVERY ORDER IN CRL.O.P.No.13267 of 2012 7.02.2013