Madras High Court
N.S.Jayanthy vs S.Nandhini on 8 August, 2024
Author: G.Jayachandran
Bench: G.Jayachandran
Crl.O.P.No.18997 of 2024
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 08.08.2024
CORAM
THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN
Crl.O.P.No.18997 of 2024
N.S.Jayanthy ... Petitioner
Vs.
1.S.Nandhini
2.S.Lakshana
3.S.Kameshwaran ... Respondents
Prayer: Criminal Original Petition is filed under Section 528 of B.N.S.S,
2023, praying to set aside the docket order, dated 21.05.2024 and pass
the order directing the Judicial Magistrate II at Poonamallee Court to
take the private complaint, dated 19.12.2023 (E-file
No.ATN20220019864C202400001, dated 27.01.2024) filed by petitioner
on record and to conduct the enquiry and to call upon the complainant to
produce all his witnesses and examine them on oath.
For Petitioner : Mr.S.Kathiravan
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Crl.O.P.No.18997 of 2024
ORDER
The private complaint under Section 200 of the Code of Criminal
Procedure for offences under Sections 419, 420 and 406 IPC, presented
before the Judicial Magistrate was returned saying that a reading of the
complaint indicates only a civil transaction and therefore a private
complaint cannot be entertained.
2. The learned counsel for the petitioner referring the complaint
and the judgment of the Hon'ble Supreme Court rendered in A.M.Mohan
Vs. State reported in 2024 Live Law SC 197 would submit that when a
private complaint apparently discloses commission of cognizable
offence, the Judicial Magistrate cannot return the complaint saying it is
civil in nature. The complaint should be taken on file, only after
examining the complainant and other witnesses it should be decided as to
whether process should be issued or not under Section 203 of the Code
of Criminal Procedure.
3. The learned counsel would also submit that the agreement
entered into between the complainant and the accused person would
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clearly show that there is inducement to part away Rs.5,00,000/-
promising to pay 10% of the investment as monthly return by investing
the money in share market. Later it has been found that the accused has
not invested in the share market and accused has not expertized in the
share business. Therefore, he would contend that the deceptive intention
at the inception is very clear in the complaint.
4. However, the learned Judicial Magistrate failed to take the
complaint on file. This private complaint has been presented before the
learned Judicial Magistrate on 19.12.2023. Hence, the same is dealt as
per the old provision under the Code of Criminal Procedure. Section 200
of the Code of Criminal Procedure reads as follows:-
200. Examination of complainant.- A
Magistrate taking cognizance of an offence on
complaint shall examine upon oath the complainant
and the witnesses present, if any, and the substance
of such examination shall be reduced to writing and
shall be signed by the complainant and the
witnesses, and also by the Magistrate:
Provided that, when the complaint is made in
writing, the Magistrate need not examine the
complainant and the witnesses--
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(a) if a public servant acting or purporting to
act in the discharge of his official duties or a Court
has made the complaint; or
(b) if the Magistrate makes over the case for
inquiry or trial to another Magistrate under Section
192:
Provided further that if the Magistrate makes
over the case to another Magistrate under Section
192 after examining the complainant and the
witnesses, the latter Magistrate need not re-
examine them.
5. It is thus clear from a reading of Section 200 of the Code of
Criminal Procedure that examination of the complainant and the witness
on oath will arise only when the Magistrate takes cognizance of the
offence found in the complaint. Unless the Court takes cognizance of the
offence for reasons stated, the subsequent process under Section 202 of
the Code of Criminal Procedure will not arise. The contention of the
learned counsel is that in any event the statement under oath of the
complainant and the witnesses to be recorded and the result of the
enquiry or investigation if any under Section 202, the Magistrate can
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dismiss the complaint, if he is of the opinion that there is no sufficient
ground for proceeding. It is contended that without recording the
statement of oath the Magistrate cannot return the complaint with a pre-
concluded finding that the complaint is purely civil transaction.
6. The contention of the petitioner herein cannot be countenanced
for the reason that the complaint filed under Section 200 Cr.P.C. should
disclose a prima facie case of commission of offence which should be
taken cognizance. If the complaint is bereft of information and purely
civil in nature, the Magistrate need not take a trouble of examining the
complainant and proceed further and dismiss it under Section 203 of the
Code. The complainant cannot improve his case beyond what is stated in
the written complaint, unlike FIR which only sets the law in motion for
enquiry or it is not encyclopedia of the entire offence.
7. When a party choose to file a complaint under Section 200
Cr.P.C the entire facts, evidence and the ingredients to proceed against
the accused for this offence specified in this complaint should be
explicit. The complaint under consideration first of all discloses only the
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fact that the money was collected by the accused person promising
interest at 10% per month i.e,120% per annum, which is not been
honored after one payment of Rs.50,000/-. The breach of said contract is
purely civil dispute.
8. The learned counsel for the petitioner would submit that in this
connection when the complainant gave a police complaint, Kameshwan,
A3 undertook to repay the money and gave a cheque and that cheque was
returned since the account was closed long back.
9. This Court find that a pure civil transaction of money lending
expecting interest, on breach been given a criminal colour. Precisely
when such matters were considered by the Hon'ble Supreme Court on
various occasions had said that police or the complainant cannot give a
criminal colour to the civil transaction and make the case fit for
prosecution. In such cases the Court under Section 482 of Cr.P.C can
rightly interfere.
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10. This is a converse case where the Magistrate who has applied
his mind and found that this matter cannot be taken cognizance, since it
is purely civil in nature. This Court find that the docket order of the
Judicial Magistrate dated 21.05.2024 falls well within the parameters of
the judicial pronouncement regarding private complaint.
11. Hence, this Criminal Original Petition is dismissed as devoid
of merits.
08.08.2024
Index : Yes/No
Neutral Citation : Yes/No
dsa
To
1.The Judicial Magistrate II,
Poonamallee.
2.The Public Prosecutor,
High Court of Madras,
Chennai.
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Dr.G.JAYACHANDRAN,J.
dsa
08.08.2024
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