BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 20/12/2007 Coram THE HONOURABLE MR JUSTICE S.NAGAMUTHY Crl.O.P.No.5742 of 2005 and M.P.No.2 of 2006 Periyasamy .. Petitioner vs. 1.The State, rep.by the Inspector of Police, Ottanchathiram Police Station, Dindigul District. 2.V.Muthuvel Prop.V.M.Commission Mandi V.M.Illam, 3rd Street, Thiruvalluvar Salai, Ottanchathiram, Dindigul District .. Respondents Criminal original petition filed under Section 482 Cr.P.C. to call for the records pertaining to the order passed by the learned Judicial Magistrate No.I, Dindigul, Dindigul District in Cr.M.P.No.3285 of 2007 and set aside the same. !For Petitioner ... Mr.R.Anand ^For Respondents ... Ms.Siva Ayyappan,G.A.forR1 :ORDER
The second respondent filed a private complaint before the learned
Judicial Magistrate, No.I, Dindigul, against the petitioner alleging that the
petitioner had committed offences punishable under Sections 379 and 420 I.P.C.
The crux of the allegation is that a cheque belonging to the second respondent
was stolen by the petitioner and subsequently, the same was filled up to his
convenience to file the private complaint against the petitioner under Section
138 of the Negotiable Instruments Act. The learned Magistrate referred the same
to the first respondent under Section 156(3) Cr.P.C for investigation. The said
order of the learned Magistrate, passed under Section 156(3) Cr.P.C. is under
challenge in this petition.
2. The learned counsel for the petitioner Mr.Anand would submit that the
prayer in the complaint itself was only to take cognizance on the complaint
filed by the second respondent and therefore, the learned Magistrate was not
within his competence to refer the complaint to the police for investigation.
He would further submit that the case under Section 138 N.I.Act, filed on the
basis of the said cheque in question, is pending before the same Magistrate and
this complaint has been preferred only out of malice.
3. The learned Government Advocate(Crl.Side) would submit that the first
respondent has not so far registered any case on the complaint. However,
enquiry is going on.
4. The second respondent has not made appearance since notice has not been
served on him.
5. I have considered the submissions made by the learned counsel for the
petitioner and also perused the records.
6. The main contention of the learned counsel for the petitioner that it
is not legal or it is not within the competence of the learned Magistrate to
refer the complaint to the police for investigation under Section 156(3) Cr.P.C.
when the prayer itself is only for taking cognizance of the offences cannot be
countenanced at all. It is needless to say that whenever a private complaint is
filed before the learned Magistrate, the learned Magistrate has 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 had 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. A perusal of the scheme of all these provisions, namely, Section 156,
Sections 200 to 204 Cr.P.C. would go to show that it is well within the
competence and power of the Magistrate to refer the complaint to the police
under Section 156(3) Cr.P.C., without taking cognizance. Therefore, in my
considered opinion, in the instant case, the learned Magistrate has exercised
his power rightly and there is no infirmity in the said order.
8. So far as the second contention of the learned counsel that the
complaint has been filed with malice also cannot be considered at this stage.
Whether the allegations made in the complaint are true or not are all matters
for investigation and this Court, while exercising its power under Section 482
Cr.P.C., cannot go into those disputed questions to give a finding whether the
complaint is false or true.
9. In the above stated circumstances, I do not find any ground to set
aside the order of the learned Magistrate. Hence, this criminal original
petition is dismissed. Consequently, connected miscellaneous petition is
dismissed.
10. The learned counsel for the petitioner would however submit that there
may be a direction to the first respondent police to conduct fair investigation.
11. In my considered opinion such a direction need not be given, since it
is the bounden duty of the first respondent to hold a thorough and impartial
investigation. While doing so, the first respondent shall afford sufficient
opportunity to the petitioner to produce his documents and evidence in respect
of the allegations made against him. The first respondent shall complete the
investigation within a period of two months and file appropriate final report.
msk
To
1.The Inspector of Police,
Ottanchathiram Police Station,
Dindigul District.
2.The Judicial Magistrate No.I,
Dindigul, Dindigul District