IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 28-3-2011 CORAM THE HONOURABLE MR. JUSTICE G.M. AKBAR ALI CRL.O.P.No.9227 of 2010 and M.P.No.1 of 2010 1. Maheswari 2. B. Babu 3. Suguna 4. B. Sankar 5. B. Palani 6. Gunasundari 7.B. Vijayakumar ... Petitioners/Accused 2 to 8 vs 1. Jayanthi 2. Suganthi ... Respondents/Complainant Criminal Original Petition filed under Section 482 Cr.P.C. for the reliefs as stated therein. For petitioners : Mr.AR.L. Sundaresan for Mr.G. Appavu For respondents : Mr.K.R. Ramesh Kumar ORDER By consent of both sides, the petition has been taken up for final hearing. The petitioners, who have been arrayed as A.2 to A.8 in C.C.No.8193 of 2004 pending on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai, have filed the present petition seeking a direction to call for the records in the above case and quash the same. 2. The respondents 1 and 2 who are represented by Power of Agent, initially gave a complaint against one T.M. Boopathy, the father of the petitioners and against the petitioners for an alleged offence of forgery and cheating. The complaint was lodged before the learned II M.M, Egmore, Chennai under Sec.156(3) Cr.P.C and on the direction of the learned Magistrate, the case has been https://hcservices.ecourts.gov.in/hcservices/ registered in Central Crime Branch No.73 of 2001 for an alleged offence under Secs.405 , 467, 474, 420 r/w 120-b IPC. The complaint relates to a property in S.No.86/13 of Thiruvanmiyur village. It was investigated and a final report was filed stating that there is no offence made out and the case was referred as civil in nature and Referred Charge Sheet notice was also served. 3. The respondent through their power of attorney filed the present private complaint on the same allegations under Sec/190(1) Cr.P.C. Before the learned XI M.M, Saidapet, Chennai and the learned Magistrate has taken the case on file in C.C.No.8193 of 2004 and has issued summons. Aggrieved by which, the petitioners shown as A.2 to A.8 are before this Court challenging taking cognizance or issuing process. 4. The only point urged before this Court is that a joint complaint by two persons in respect of one and the same offence is not maintainable. 5. Mr.AR.L. Sundaresan, learned senior counsel would draw our attention to a decision reported in AIR 1931 Calcutta 646 (Sashadhar Achariya and another vs Sri Charles Tegart and others) where a Division Bench of Calcutta High Court has held that "The first and most prominent fault is that it is a joint complaint which so far as we know is not contemplated by the Criminal Procedure Code. The duties of a Magistrate under S.200 Criminal P.C makes this clear, because in taking cognizance of an offence on complaint he must at once examine the complainant upon oath and it is obvious that if there are two or more complainants on the same complaint it is physically impossible to fulfil the provisions of that section." 6. The learned counsel also relied on a decision reported in 1989 LW (Crl) 186 (R. Krishnamurthy vs M.P. Raja), where this Court held that " 4. As regards the validity of the complaint is concerned, it is contended that one complaint cannot be filed by two persons; the learned counsel appearing for the petitioners would contend that the complaint filed by two persons jointly is not in the contemplation of the scheme of the Code of Criminal Procedure and produced before me two decisions: (i) Sashadhar Achariya vs Sir Charles https://hcservices.ecourts.gov.in/hcservices/ Tegari wherein it was held that "A joint complaint by two persons is not contemplated by the Code" and (ii) Narayanaswami vs Egappa Reddi wherein it was held that "A complaint could be filed by only one person. There is no provision in the Criminal Procedure Code for joint complaints". The learned counsel appearing for the other side would concede that the complaint filed as such was not in order and that it will be possible either to file fresh complaints or to see that one of the complainants withdraws from the complaint. 5. The resulting position is that the complaint as it was filed is not valid; all the subsequent steps taken by the learned Magistrate on the complaint are to be considered as not legal and are thereby quashed. If the complaint is revised in a legal manner in one way or the other, the learned Magistrate will deal with it a fresh in accordance with law." 7. He also relied on a decision reported in 2007 (2) Crimes 166 (Mad) (Thethavusamy vs Radhakrishnan) this court followed the above said two decisions and has held that the complaint made by two persons jointly in respect of one and same occurrence as not valid. 8. On the contrary, Mr.K.R. Ramesh Kumar, learned counsel for the respondents submits that the defacto-complainants have purchased the property from the lawful owners and are in possession of the same. The learned counsel pointed out that the petitioners have given a power of attorney to the said T.M. Boopathy, the father of the petitioners, in pursuant to which, he had forged a patta which is a fabricated document and has used the same before the Revenue Authorities and also before the Tamil Nadu Housing Board. The learned counsel also pointed out that the complainants had filed a suit for injunction against the said Boopathy and had obtained a decree which has been confirmed by the 1st and 2nd appellate court. The learned counsel submitted that all the courts have doubted the genuineness of the documents filed by the said Boopathy. 9. Heard and perused the materials available on record. https://hcservices.ecourts.gov.in/hcservices/ 10. As stated earlier, on failure to impress upon the central crime branch to investigate a complaint given by the power of attorney of the respondents, a private complaint has been given before the learned Magistrate for the alleged offence under Secs.405 , 467, 474, 420 r/w 120-b IPC. Admittedly, two persons have joined to file the complaint through a power of attorney. Except, that they are represented by the power of attorney, in all other aspects, it is a joint complaint for the one and the same offence. 11. In 1989 LW Crl 186, (R. Krishnamurthy vs M.P. Raja) this Court had an occasion to deal with the similar question. In AIR 1931 Calcutta 646, (Sashadhar Achariya and another vs Sri Charles Tegart and others) it was held that a joint complaint by two persons is not contemplated by the Code. 12. In 1961 MWN Crl 129 Narayansawamy vs Egappa Reddi, it was held that a complaint could be filed by only one person and there is no provision in the criminal procedure code in the joint complaints. 13. Following these two decisions, in 2007 (2) Crimes 166 (Mad) (Thethavusamy vs Radhakrishnan) this Court held the complaint made by two persons jointly in respect of one and the same occurrence is not valid. 14. Sec.200 of the Criminal Procedure Code contemplates examination of the complainant . A Magistrate taking cognizance of an offence on complaint shall examine on oath the complainant. If there are more than one complaint, it will be difficult for the Magistrate to form an opinion for taking cogniznce of an offence. This applies to the power of attorney of two complaints also. Therefore, the joint complaint given by two persons is not maintainable and liable to be quashed. 15. In the result, the criminal original petition is allowed and the proceedings in C.C.No.8193 of 2004 on the file of the learned XI Metropolitan Magistrate, Saidapet, Chennai is quashed. Sd/- Asst. Registrar /True copy/ Sub. Asst. Registrar sr https://hcservices.ecourts.gov.in/hcservices/ To 1. The XI Metropolitan Magistrate, Saidapet, Chennai. 2. -do- Through The Chief Metropolitan Magistrate, Saidapet, Chennai. + 1 cc to Mr.G. Appavu, SR.22220 Crl.O.P.No. 9227 of 2010 MDR(CO) Eu 26.4.11 https://hcservices.ecourts.gov.in/hcservices/