IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 16.12.2010 CORAM: THE HONOURABLE MR.JUSTICE T. MATHIVANAN Crl.O.P No.23702 of 2010 and M.P.No.1 & 2 of 2010 1.Tmt. V.Savitha Devi W/o. G. Venkatesh 2.Thiru G.Venkatesh S/o. Gopal 3.Thiru J.Balachander S/o. Jeganathasamy 4.Thiru V.Devarajan S/o.Venkatesan ... Petitioners Vs. Dr. S.Kalaikumar S/o.Thiru. V.Sundaram ... Respondent Prayer: Petition filed under Section 482 Cr.P.C, praying to call for the records in the case in CC.No.855 of 2010 on the file of the Learned Judicial Magistrate No.II, Coimbatore, and to quash the proceedings. For Petitioner :Mr.C.S.Dhanasekaran For Respondents :Mr.R.Murali. O R D E R Invoking the inherent jurisdiction of this Court under Section 482 Cr.P.C. the petitioners herein have come forward with this petition to call for the records in connection with the case in CC.No.855 of 2010 on the file of the Learned Judicial Magistrate No.II, Coimbatore, and to quash the proceedings. 2. The facts which are absolutely necessary for the disposal of this petition may be summarised briefly as follows; 3. The petitioners being the accused in the case in CC.No.855 of 2010 on the file of the Learned Judicial Magistrate No.II, Coimbatore https://hcservices.ecourts.gov.in/hcservices/ are facing the charges under Section 209, 211 r/w 109 of IPC. The first petitioner is the wife of the second petitioner. The third petitioner is the father of the first petitioner. The fourth petitioner is an associate of the petitioners 1 to 3. Petitioners 1 and 2 are running a petrol bunk under the name and style of M/s. Samyuktha Corporation and the third respondent being the father of the first respondent has been assisting them in their business. 4. That on 05.07.2006, the petitioners 1 and 2 in the presence of the third petitioner had borrowed a sum of Rs.5lakhs from the respondent by way of a pay order bearing No.002179 drawn on Bank of India, R.S.Puram Branch, Coimbatore. Again on 11.07.2007 they had borrowed another sum of Rs.4,50,000/- from the respondent. In order to repay the said amount they had also issued two cheques bearing No.113583 dated 04.07.2007 and no.862088 dated 25.07.2007. Since the above said two cheques were bounced back, the respondent had filed two cases viz., CC.No.876 of 2007 before the Learned Judicial Magistrate No.II, Coimbatore and CC.No.117 of 2008 before the Learned Judicial Magistrate No.VII, Coimbatore, to prosecute the petitioners 1 and 2 under Section 138 of Negotiable Instruments Act. 5. When the matter stood thus that on 27.03.2008 on the basis of a complaint lodged by the first petitioner herein a case in Crime No.291 of 2008 under Sections 147, 342, 506(ii) and 384 of IPC was registered against the respondent and 13 others. After thorough investigation the investigating officer came to a conclusion that the charges levelled against the respondent were false and untrue, and therefore, the investigating officer had referred the case as mistake of fact and the referred charge sheet was also sent to the Court. 6. The petitioners were aware of the final report submitted by the investigating officer in the case in Crime No.291 of 2008 and even in spite of that the petitioner never chosen to take further action. In the first information of the case in Crime No.291 of 2008, the first petitioner had alleged that the respondent and others had taken away the cheques from her possession forcibly on 17.03.2007. Since the case was referred as mistake of fact and the referred charge sheet to that effect was also filed before the competent Court of Law it is very clear that the first petitioner had preferred a false complaint knowing fully well that there was no just on lawful ground. Hence, the respondent had lodged a private complaint before the Learned Judicial Magistrate No.II, Coimbatore under Section 195 (1)(b)(i) of Cr.P.C. with a prayer to prefer a complaint against the petitioners/accused 1 to 4 for the offences punishable under Sections 209, 211 r/w 109 of IPC. 7. After receiving the complaint the Learned Judicial Magistrate No.II, Coimbatore has taken cognisance of the offences under Sections 209, 211 r/w 109 IPC in CC.No.855 of 2010 on his file. In the above back drop the petitioners have come forward with this petition to https://hcservices.ecourts.gov.in/hcservices/ quash the case in CC.No.855 of 2010 on the ground that the Learned Judicial Magistrate No.II, Coimbatore instead of proceeding under Section 195(1)(b)(i) of Cr.P.C. has erroneously taken cognisance of the offence under Sections 209, 211 r/w 109 IPC. 8. Heard both sides. 9. It is obvious that the respondent herein has filed a complaint under Section 195(1)(b)(i) of Cr.P.C. before the Learned Judicial Magistrate No.II, Coimbatore to deal with the petitioners 1 to 4 under Section 209, 211 r/w109 of IPC. Section 195(1)(b)(i) of Cr.P.C. reads as follows; "Section 195(1) – No Court shall take cognisance; (b)(i) of any offence punishable under any of the following Sections of IPC (45/1860) 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; (except on the complaint in writing of that Court or by such officer of the Court as that Court may authorise in writing in this behalf or of some other Court to which that Court is subordinate)" Sub Section (3) to Section 195 of Cr.P.C reads as follows; "(3)in clause (b) of Sub Section (1) the term 'Court' means a civil, revenue or criminal Court, and includes a Tribunal constituted by or under a central provincial or State Act if declared by that Act to a Court for the purpose of this Section." 10. The words 'any proceeding' used in Clause (b)(1) of Sub Section 1 to Section 195 Cr.P.C. are words of wide amplitude and have no limitations except that the proceedings should be before a Court. The word 'any' which precedes the expression 'proceeding' is interchangeable with the words 'every' or 'all'. This dictum is held in P.C.Gupta v. State reported in 1974 CrLJ 945 (All-FB). 11. It further contemplates that the offence must have been committed "in or in relation to any proceeding in any Court". These words are very general and are wide enough to cover a proceeding in contemplation before a criminal Court, though it may not have begun at the date when the offence was committed. The magistrate is competent to make his complaint under this Section if he is satisfied that the offence complained of was committed in relation to any proceedings pending or concluded in the Court of the Magistrate. This principle has also been laid down by the Hon'ble Supreme Court of India in M.L.Sethi v. R.P.Kapur reported in AIR 1967 SC 528. https://hcservices.ecourts.gov.in/hcservices/ 12. The learned counsel for the petitioner Mr. C.S.Dhanasekaran has submitted that to comply with the provisions under Section 195(1) (b)(i) of Cr.P.C. a proceeding must be pending before a Court of Law and that in the present case no such proceedings is pending before the learned Judicial Magistrate-II, Coimbatore and hence, the cognisance taken by the Learned Judicial Magistrate No.II, Coimbatore is absolutely nothing but illegal which is liable to be quashed. 13. While advancing his arguments he has also laid emphasis on the proviso to Section 195 of Cr.P.C. and submitted that the Learned Judicial Magistrate No.II, Coimbatore ought not to have taken cognisance of the case under Section 209 and 211 r/w 109 of IPC, without a complaint in writing by a competent Court of Law in which an offence should have been committed. He has also added further that even as per the prayer of the complaint which is preferred by the respondent, it is apparent that he had requested the Learned Judicial Magistrate No.II, Coimbatore to prefer a complaint against the petitioners for the offences under Sections 209, 211 r/w 109 of IPC. He would also submit that without knowing the nuance of the proviso to Section 195 of Cr.P.C and in total negation of the intention of the legislature, the Learned Judicial Magistrate No.II, Coimbatore had taken cognisance of the offence under Sections 209, 211 r/w 109 of IPC as against the petitioners which is totally misconceived and misconstrution of Law. 14. In support of his arguments he has placed reliance upon the decision in Sanghvi Sukhraj v. Madhanraj and others reported in 1984 MLJ 537. "In this case the petitioner's complaint against the respondents was referred as civil dispute. The respondents had filed a private complaint for the offence of defarmation against the petitioners. Under this circumstance the petitioner had approached the Court to quash the complaint under Section 482 Cr.P.C. After hearing both sides the Learned Single Judge of this Court had held that no complaint of Court is necessary under Section 195 Cr.P.C. It was also held that in the instant case the complaint now in question has not been taken on file under Section 211 of IPC, but only under Section 500 of IPC and for taking cognisance of such an offence the filing of the complaint by a Court is not prerequisite. It was also held that the petitioner cannot be heard to say that the trial Magistrate cannot take cognisance of the offence under Section 500 of IPC, inasmuch as the commission of an offence under Section 211 of IPC has also been alleged and for taking cognisance of an offence under Section 211 of IPC the complaint must have been filed by the Court in which the offence was committed. Therefore, the petition for quashing the proceedings does not lie and has to be dismissed. https://hcservices.ecourts.gov.in/hcservices/ 15. The circumstances narrated in the above cited decision are in different footing. As rightly observed by the Learned Single Judge of this Court, the complaint was not taken on file under Section 211 of IPC, but it was taken on file only under Section 500 of IPC. The fact situations in the instant case on hand are entirely different. As discussed in the opening paragraphs, two cases in CC.No.876 of 2007 and CC.No.117 of 2008 were instituted by the respondent against the petitioners 1 to 3 under Section 138 of Negotiable Instruments Act. Thereafter the first petitioner herein had lodged a complaint before, B-9, Saravanabati Police Station alleging that the respondent and his men had forcibly taken away the cheques from her possession. On the basis of the complaint the Station House Officer of Saravanabati Police Station had registered a case in CrimeNo.291 of 2008 under Sections 147, 342, 506(ii) and 384 of IPC. Ultimately, the case was referred as mistake of fact and to that effect a referred charge sheet was also filed before the concerned Court of Law. 16. Being irked by the complaint lodged by the first petitioner the respondent had filed the above said complaint under Section 195 (1)(b)(i) of Cr.P.C. before the Learned Judicial Magistrate No.II, Coimbatore with a prayer to prefer a complaint against the petitioners/accused for the offences punishable under Section 209, 211 r/w 109 of IPC. 17. Ex facie it is apparent that the cognisance of the offence under Section 209, 211 r/w 109 IPC taken by the Learned Judicial Magistrate No.II, Coimbatore absolutely wrong. As rightly contended by the learned counsel for the petitioner, he should not have taken cognisance of the offence for which he is not having competency as contemplated under Section 195(1)(b)(i) of Cr.P.C. 18. The object of the section is to protect persons from being needlessly harassed by vexatious prosecutions in relation. It is a check to protect innocent persons from criminal prosecution which may be actuated by malice or ill-will. The object of the section is also to stop private person from obtaining sanction as a means of wreaking vengeance and to give the Court full discretion in deciding whether any prosecution is necessary or not. Sanction to prosecute cannot now be granted to a private person. 19. In M.S.Ahlawat v. State of Haryana reported in AIR 2000 SC 168, the Hon'ble Supreme Court of India has held that; "every innocent or false statement does not make it incumbent upon the Court to order prosecution. The Court should exercise judicial discretion in the light of all relevant circumstances. The Court orders prosecution in the larger interest of the administration of justice and not to https://hcservices.ecourts.gov.in/hcservices/ gratify feelings of personal revenge or vindictiveness or serve the ends of a private party." 20. In State of U.P. vs. Mata Bhikh and others reported in (1994) 4 SCC 95, the Supreme Court has held that; "The provisions of this Section are mandatory, the prosecution in respect of the offences mentioned in the section can be initiated only by the public servant, private complaint does not be." 21. It is also observed in Surjit Singh v. Balbir Singh reported in AIR 1996 SC 1592 that; "The provisions of Section 195 Cr.P.C. are mandatory and no Court has jurisdiction to take cognisance of any of the offences mentioned therein unless there is a complaint in writing required under that section. However, every incorrect or false statement does not make it incumbent upon the Court to order prosecution, but the Court is to exercise judicial discretion to order prosecution only in the larger interest of the administration of justice." 22. It is needles to state that Section 195(1)(b)(i) operates as a bar in taking cognisance in relation to offence punishable under Section 211 of IPC except on complaint in writing of such Court. On coming to the instant case on hand no written complaint has been filed by the Learned Judicial Magistrate-II, Coimbatore, or any other Court as contemplated under Section 195(1)(b)(i) of Cr.P.C. Under this circumstance, the cognisance of offence under Sections 209, 211 and 109 of IPC taken by the Learned Judicial Magistrate-II, Coimbatore is illegal and therefore, liable to be quashed. 23. This principle is also laid down in Harish Chandra Pathak v. Anil Vats & Another reported in 2008 Cri.L.J. 2965. The Learned Single judge of Allahabad High Court has held that; "Section 195(b)(i) bars the Court from taking cognisance of offences punishable under Sections 193 to 196, 199, 200, 205 to 211 and 228 of the Indian Penal Code when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of that Court or of some other Court to which that Court is subordinate. Cognisance in relation to an offence punishable under Section 211 IPC when such offence is alleged to have been committed in or in relation to any proceeding in any Court cannot be taken except on the complaint in writing of such Court." 24. This Court has carefully perused the available materials on record. Having regard to the submissions made by the learned counsel for the petitioner and on taking into consideration all the related facts and circumstances, this Court is of considered view that the https://hcservices.ecourts.gov.in/hcservices/ cognisance of the offence under Sections 209, 211 r/w 109 of IPC taken by the Learned Judicial Magistrate-II, Coimbatore is in total negation of the principle of law envisaged under Section 195(1)(b)(i) of Cr.P.C. The Learned Judicial Magistrate-II does not have jurisdiction to take cognisance of the offence as there is no complaint in writing either by him or by any other Court, or by any other officer who is duly authorised to do so. 25. Keeping in view of the findings given above, the case in CC.No.855 of 2010 on the file of the Learned Judicial Magistrate-II Coimbatore is quashed. With this observation the petition is disposed of. Consequently, connected miscellaneous petitions are also closed. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar prm To, 1. The Judicial Magistrate No.II, Judicial Magistrate Court No.II Coimbatore. 2. -do- Through The Chief Judicial Magistate, Coimbatore. CRL.O.P.No.23702 of 2010 and M.P.No.1 & 2 of 2010 KU(CO) RVL 04.01.2011 https://hcservices.ecourts.gov.in/hcservices/