IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 18.09.2008 CORAM THE HONOURABLE MR.JUSTICE K. MOHAN RAM Crl.O.P. No. 22629 of 2008 Casim Fareed Jaffardeen ..Petitioner Vs. Mohd. Ansari ..Respondent Prayer: Petition under Section 482 Cr.P.C. to set aside the orders passed by the learned XVIII Metropolitan Magistrate, Saidapet, dated 21.7.2008 by returning the complaint as not maintainable. For Petitioner :: Mr. Anand Venkatesh O R D E R The criminal original petition is filed seeking to set aside the order of the XVIII Metropolitan Magistrate, Saidapet, dated 21.7.2008. 2. The brief facts which are necessary for the disposal of the above criminal original petition are set out hereunder: The case of the petitioner is that a cheque which was given as security was not returned even after the repayment of the entire loan amount with interest but was misused which resulted in the cheque being returned on its deposit. Consequently, a criminal complaint under Section 138 of the Negotiable Instruments Act was instituted against the petitioner; in such circumstance, the petitioner filed a complaint before the learned XVIII Metropolitan Magistrate, Saidapet, Chennai against the respondent herein for alleged offences under Sections 406 and 420 I.P.C. But the said complaint was returned by the learned Magistrate on 21.7.2008 with the following endorsement: "On perusal of the complaint, it is seen that already a complaint hs been filed by the proposed accused before the J.M.No.I, Myladuthurai in C.C. No. 144/08 under Section 138 of the N.I. Act before filing this instant complaint by the Casim Fareed Jaffordeen through his P.O.A. When there is criminal complaint is pending for disposal before the competent court, entertaining complaint involving relatively same set of facts https://hcservices.ecourts.gov.in/hcservices/ may amounts abuse of process of law though it is different section of IPC. The copy of S.C. order reported in 2008 (1) MLJ Crl 721 (SC) cited by the complainant also not applies to the facts and circumstances explained in the instant complaint. Specifically the order of Hon'ble S.C. deals with case where a police complaint given by the appellant for misuse of cheque and quashing of the FIR by Hon'ble HC. However the instant case no such police complaint appears to be given by the complainant regarding the alleged misuse of cheque well in advance. In view of the above the complaint is returned as not maintainable." The said return of the complaint filed by the petitioner is being challenged in this criminal original petition. 3. Learned counsel for the petitioner submitted that the learned Magistrate has failed to properly consider the law laid down by the Apex Court in the case reported in 2008 1 MLJ (Crl) 721 (SC) (SURYALAKSHMI COTTON MILLS LTD. V. RAJVIR INDUSTRIES LIMITED AND OTHERS) wherein in paragraph 24, it was held as hereunder: "24. However, a case for proceeding against the respondents under Section 406 has, in our opinion, been made out. A cheque being a property, the same was entrusted to the respondents. If the said property has been misappropriated or has been used for a purpose for which the same had not been handed over, a case under Section 406 may be found to have been made out. It may be true that even in a proceeding under Section 138 of the Negotiable Instruments Act, the appellant could raise a defence that the cheques were not meant to be used towards discharge of a lawful liability or a debt, but the same by itself in our opinion would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed." Placing reliance on the aforesaid decision, the learned counsel submitted even if a complaint under Section 138 of the Negotiable Instruments Act is filed, an independent complaint for criminal breach of trust would be maintainable, in addition to the very same defence available to the petitioner, which he would take in the case filed against him under Section 138 of the Negotiable Instruments Act. 4. Learned counsel for the petitioner also relied on the decision of the Division Bench of this Court reported in 2000 -1-L.W. (Crl.) 460 (A. VINAYAGAM V. DR. SUBASH CHANDRAN) wherein the Division Bench, in paragraphs 14, 15 and 22, has observed as hereunder: "14. The combined reading of Section 2(d) of the Code of Criminal Procedure, which defines "complaint' and Rules 28 and III of the Criminal Rule of practice would suggest that, all that the complainant has to do for lodging a complaint is to present a complaint to the Magistrate. That would pre-suppose that the complaint is filed with proper court-fee, which would https://hcservices.ecourts.gov.in/hcservices/ be paid along with the complaint. Careful scrutiny of the Criminal Rules of practice as also the Code of Criminal Procedure does not show that anything more is required at this stage to be presented by the complainant or that any documents are also required to be filed along with the complaint. Once a complaint is filed which answers the description in Section 2(d) of the Code of Criminal Procedure along with proper court-fees and copies, there would be no question of doing anything further at that stage. IN this behalf, Chaper XV of the Code of Criminal Procedure is extremely telling. It goes without saying, however, that Section 200 of the Code of Criminal Procedure commences with the cognizance taken by the Magistrate. Chapter XV deals with the complaints to be Magistrate and provides for all that the Magistrate has to do after taking the cognizance, that the Magistrate has to do under Section 200(a). When the Magistrate takes cognizance upon receiving a complaint under clause (a) of Section 200, he acts on the basis of the contents in the complaint with a view to proceed in the matter and has the following courses open: I. He has to examine the complainant and his witnesses, if any. II. After such examination, he may postpone, the issuance of process by inquiring into the case by himself or directing an investigation to be made by a police officer. III. If the Magistrate is convinced after the examination of the complainant or as the case may be his witnesses, he may decide to issue the process. IV. he may straight away decide to dismiss the complaint, after such an exercise of examination of the complainant and the witnesses. 15. Law does not know or provide any other mode of dealing with the complaint, much less returning the complaint. It is not possible for a Magistrate to return the complaint for the so called defects and if the defects are there in the complaint, the complainant has to suffer. There is no warrant in the Criminal Procedure Code or the Criminal Rules of Practice, empowering the Magistrate to return the complaint just because he thinks that there are any defects. In this behalf, the observation by both the learned Judges that the Magistrate has a power to return the complaint because he has a power to accept is clearly incorrect. In the first place,the Magistrate does not have a "power" to accept the complaint. That is not the power of the Court. That is the "duty" on the part of the Court in contradistinction to its https://hcservices.ecourts.gov.in/hcservices/ "powers". Again, unless there is a specific provision in the Code or the Rules, the Magistrate cannot find out his own procedure by returning the complaint as ti is. In fact, when the complainant presents the case to the Magistrate that is not the stage of examining the defects ad it is not the Magistrate to examine the so called defects in the complaint. All that the Magistrate has to do is to consider the same by ordering the examination of complainant and/or as the case may be, his witnesses. It was strenuously suggested that if there are some formal defects like the age is not stated or the name of the father of the accused is not stated, the complainant should get a fair chance to correct the defects. We only observe that it is for the complainant to produce a defectless complaint, if because of such defects, such as non- mentioning of the age and names of father etc., the identity of the accused person becoming suspicious or is not established properly then, the complainant must suffer for his defective complaint, but, under no circumstances, could the Magistrate return the complaint, particularly after the court- seal has been put on that complain and the court-fees stamps have been cancelled then, as rightly found by Janarthanam,J., the complaint becomes the Court property. ..... 22. Turning now to the cases on hand, it is clear that the complaints in both the cases were filed in time. There is no dispute about the same. The Magistrate in both the cases have returned the papers to the complainants by making some endorsements thereupon. The learned counsel Mr. Packiaraj urged that those endorsements amounted to rejection of the complaints under Section 203 of the Code of Criminal Procedure and, therefore, the complainants should have filed further proceedings, challenging those endorsements, treating them to be judicial order. In the first place, the said endorsements could not be termed to be judicial orders. They could at the most be termed to be administrative orders. Any judicial order could have been passed by the Magistrate, at that stage, only after examining the complainant and/or his witnesses. Without that, the Magistrate had no jurisdiction to pass any orders. Therefore, those orders cannot be simply described as the judicial orders and consequently, the complainants cannot be held guilty for not challenging them in the proper forum by way of a revision or appeal, as the case may be. Those orders would have to be deemed as non est orders. Even if they ca be termed to be the judicial orders, they were completely without jurisdiction as we have already shown...." Relying on the above decision, the learned counsel submitted that the learned Magistrate has erred in law in returning the complaint. Learned counsel further submitted that as laid down by the Division Bench, the order passed by the learned Magistrate in returning the https://hcservices.ecourts.gov.in/hcservices/ complaint would have to be deemed as non-est in law and the endorsement made by the learned Magistrate could not be termed as a judicial order. Therefore, the learned counsel submitted that the order passed by the learned Magistrate is liable to be set aside and a direction should be issued to the learned Magistrate to take the complaint on file and deal with the same in accordance with law. 5. I have considered the aforesaid submissions made by the learned counsel for the petitioner. 6. Since the complaint has been returned at the threshold, even before taking cognizance, the question of issuing notice to the respondent does not arise. Hence, no notice has been ordered and the criminal original petition is being disposed of finally by this order. 7. At the outset, it has to be pointed out that the learned Magistrate has not properly understood the legal principles laid down in the decision of the Apex Court reported in 2008 1 MLJ (Crl) 721 (SC) (cited supra). The distinction sought to be made by the learned Magistrate based on the fact that in the case before the Supreme Court, a police complaint was filed and in the case on hand, no such police complaint was filed and in view of the same, the said decision is not applicable to the facts of this case is totally incorrect. As per the decision of the Apex Court, even though the respondent had filed a complaint under Section 138 of the Negotiable Instruments Act, the petitioner could raise a defence that the cheque was not meant to be used towards discharge of a lawful liability or debt, but the same, by itself, would not mean that in an appropriate case, a complaint petition cannot be allowed to be filed if a case under Section 406 I.P.C. is found to have been made out. It is unfortunate that the learned Magistrate has not applied his judicial mind to the allegations in the complaint and has not followed the procedure contemplated under Chapter XV of Cr.P.C. to find out whether a case under Section 406 and 420 I.P.C. has been made out. Even before undertaking such an exercise, the learned Magistrate has chosen to return the complaint with the aforesaid endorsement which, in the considered view of this Court, is illegal. As laid down by the Division Bench of this Court, the aforesaid endorsement made by the learned Magistrate cannot be considered to be a judicial order. Once the complaint has been filed, it becomes the property of the Court and it cannot be returned under any circumstance. As per the law laid down by the Division Bench, at this stage, all that the Magistrate has to do is to consider the complaint by ordering examination of the complainant/ or as the case may be, his witnesses. If the Magistrate ultimately comes to the conclusion that a case has been made out, it is for him to take cognizance of the complaint. On the other hand, if the learned Magistrate comes to the conclusion that prima facie, no case has been made out, then it is open to him to dismiss the complaint. But, the said procedure has not been followed by the learned Magistrate. https://hcservices.ecourts.gov.in/hcservices/ 8. Therefore, for the aforesaid reasons, the return of the complaint by the learned Magistrate cannot be sustained and the order is hereby set aside. The criminal original petition is allowed. Liberty is given to the petitioner to re-present the complaint within 2 weeks from the date of receipt of a copy of this order and on such re-presentation, the learned Magistrate shall entertain the complaint and follow the procedure prescribed under Section 202 Cr.P.C. and proceed further in accordance with law. It is made clear that this Court has not expressed any opinion on the merits of the allegations contained in the complaint. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nv To 1. The XVIII Metropolitan Magistrate, Saidapet, Chennai - 15.12.2006 2. The Chief Metropolitan Magistrate, Egmore, Chennai. 3. The Section Officer, Criminal Section, High Court, Madras 1 cc To Mr.N.Anand Venkatesh, Advocate, SR.53091. Crl.O.P. No. 22629 of 2008 LA(CO) RVL 13.10.2008 https://hcservices.ecourts.gov.in/hcservices/