M. Jalaluddin vs Syed Ibrahim and Another

Paul, J.—This revision is against an order of the learned Third Metropolitan Magistrate, Madras, dismissing under S. 203, Crl.P.C. the

complaint preferred by the revision petitioner alleging an offence under S. 420, I.P.C. The two grounds on which the learned Magistrate has

dismissed the complaint are :-(1) That the complaint and the sworn statement did not disclose any such offence and (2) that there was inordinate

delay in the filing of the complaint. With regard to the second ground I must straightway state that solely on the ground that there was delay in

preferring a complaint, the complaint cannot be dismissed under S. 203, Crl.P.C: This has been made clear by the Supreme Court in Assistant

Collector of Customs and Another Vs. L.R. Malwani and Another, . The Supreme Court has observed in that case as follows:

That apart, it is not the case of the accused that any period of limitation is prescribed for filing the complaint. Hence, the court before which the

complaint was filed could not have thrown out the same on the sole ground that there has been delay in filing it. The question of delay in filing a

complaint may be a circumstance to be taken into consideration in arriving at the final verdict. But by itself it affords no ground for dismissing the

complaint

In Balarani Kali v. Jagannath Kali and another AIR 1967 Cal. 208 it has been observed that

mere lapse of time between the commission of the offence and date of complaint no is ground for throwing out a complaint, though that may be a

relevant consideration at the trial for assessing the evidence when that is adduced.

Coming now to the other ground, viz., that the allegations made in the complaint and the sworn statement do not make out any offence, I am

afraid that the learned Magistrate has overlooked S. 415, I.P.C. S. 445, I.P.C. defining the offence of cheating runs thus:

Whoever, by deceiving any person fraudulently or dishonestly induces the person so deceived to ""deliver any property to any person, or to consent

that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or

omit if he were not so deceived and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or

property, Is said to ''cheat''.

Apparently, the learned Magistrate has confined his attention to the first portion of S. 415, IPC--If a person by false representations induces

another person to do something or to refrain from doing something which he would not have done in the former case and would have done in the

latter case but for the false representation made, is certainly guilty of the offence of cheating. Therefore, the allegations in paragraph 6 of the

complaint that

the second accused had taken the signatures of the complainant on various papers which were represented to be a part of the enquiry that was

conducted in the company and those papers were used; later to make out a memorandum of settlement;

would certainly disclose an offence of cheating as defined under S.415, I.P.C. Therefore, the observation of the Magistrate that from the records,

an offence could not be said to have been made is erroneous. Therefore, the dismissal of the complaint in this ease under S. 203, Crl. P.C. is not

correct and has to be set aside and is set aside and further enquiry into the complaint is ordered to be held by the 7th Metropolitan Magistrate,

Madras instead of the 3rd Metropolitan Magistrate who dismissed the complaint. The revision is allowed.

Before parting with the case, it is also necessary to refer to the fact that the office by inadvertently, I presume, sent a notice to the respondents

and Mr. Panchapakesan appeared for the respondents and wanted to argue on behalf of the respondents. But then, since this revision is against an

order of dismissal of a complaint under S. 203, Crl.P.C. the accused does not come into the picture at all and as such has no right of audience

before this court, when the dismissal of the complaint under S. 203, Crl.P.C. is challenged. Miss. Yijayalakshmi on behalf of the petitioner

vehemently objected to Mr. Panchapakesan arguing on behalf of the respondent Therefore, I said that I would hear the arguments of Mr.

Panchapakesan as amicus curiae. But, it must be made dear that in a revision against an order dismissing a complaint under S. 203, Crl. P.C. the

accused has no locus standi to appear and seek to be heard on it. This has been made clear by the decision of the Supreme Court in Chandra Deo

Singh Vs. Prokash Chandra Bose and Another, . The decision of Ramaprasada Rao, J. in R. Gopalakrithnan v. P.A.C.R. Ramasubramania Raja

and others AIR L.W. Crl. 39 is also brought to my notice. But, I have in T. Kannappa and I. Narayana Chettiar v. Karamuthu S. Chockalingam

S.C.P. 95/76 (S.C.P. 95/76 in Crl. R.C. 728/75 and Crl. M.P. 483 and 490/76) and Crl. M.P. 483 and 490/76) and in Crl.R.C. 728 of 1975

(reported in 1976 L.W. (Crl.) 60) discussed the judgments in the aforesaid cases and I do not want to reiterate the same. However, in my view,

the decision of the Supreme Court clearly shows that until a process under S. 204 is issued to an accused person, the accused does not come into

the picture at all. That means he cannot at that stage of the matter come into the picture either before the trial court or even before the High Court

when the dismissal of the complaint is challenged.