United Cargo Care vs Mr. Kuberan and The State

R. Mala, J.—This petition has been filed to set aside the order passed by the Judicial Magistrate No. 1, Thoothukudi in Cr.M.P. No. 2438

of 2011 dated 09.05.2011 and further direct the 2nd Respondent to register the complaint forwarded by the Petitioner dated 18.03.2011.

The learned Counsel appearing for the Petitioner would submit that the Petitioner has filed a private complaint before the learned Judicial

Magistrate No. 1, Tuticorin and the same was taken on file in Crl.M.P. No. 2438 of 2001 on 09.05.2011. He would further submit that even

though the Petitioner has been filed u/s 156(3) Code of Criminal Procedure, the learned Judicial Magistrate No. 1, Tuticorin, instead of forwarding

the same to the jurisdictional police station, has come to the conclusion that simply because the proposed accused has failed to keep up the

promise and not paid the balance amount, the same will not constitute the offences alleged in the complaint and dismissed the petition, against

which the present petition has been filed for setting aside the same.

He would further submit that the Petitioner has filed the private complaint only u/s 156(3) Code of Criminal Procedure, with a prayer to forward

the complaint to the concerned jurisdictional police station and to made enquiry and to register the case and for investigation. But, the learned

Judicial Magistrate, instead of forwarding the same, has dismissed the application as if the Petitioner has been filed u/s 200 Code of Criminal

Procedure, and hence, he prayed for the setting the said order and directing the 2nd Respondent to register a case on the basis of the complaint

filed by the Petitioner.

Heard the learned Government Advocate (criminal side) and perused the materials available on records.

The Petitioner herein has filed a private complaint dated 18.03.2011 before the learned Judicial Magistrate No. 1, Tuticorin u/s 156(3) Code of

Criminal Procedure The case of the Petitioner is that he has entered into a contract and perform his clearance duty. After completion of the agreed

project, the Petitioner raised to the 1st Respondent, the invoice No. 130, dated 20.05.2009 including his service charges to the tune of Rs.

3,78,305/-, but, he paid only Rs. 2,40,000/-and the balance is Rs. 1,38,305/-. In spite of several requests made by the Petitioner, he has not paid

the amount and hence, he gave a complaint before the Inspector of Police, District Crime Branch, Tuticorin for the offence under Sections 406,

407, 417, 418 and 420 I.P.C. Since No. case has been registered by the Respondent police, he preferred a private complaint u/s 156(3) Code of

Criminal Procedure before the learned Judicial Magistrate No. 1, Tuticorin. In the complaint also, the Petitioner has stated that ""COMPLAINT

FILED ON BEHALF of THE COMPLAINANT u/s 156(3) of CR.P.C. TO ISSUE DIRECTION TO THE SECOND RESPONDENT"".

At this juncture, it is very useful to extract Section 156(3) and 190 Code of Criminal Procedure for ready reference.

Police Officer''s power to investigate

cognizable cases. -

Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction

over the local area within the limits of such station would habve power to inquire into or try under the provisions of Chapter XIII.

No proceeding of a police officer in any such case shall, at any stage, be called in question on the ground that the case was one which such

officer was not empowered under this section to investigate.

Any Magistrate empowered u/s 190 may order such an investigation as above mentioned.

190 Code of Criminal Procedure Cognizance of offences by Magistrates. -(1) Subject to the provisions of this Chapter, any Magistrate of the first

class, and any Magistrate of the second class specially empowered in this behalf under Sub-section (2), may take cognizance of any offence-

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a police report of such facts;

(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.

It is appropriate on the part of this Court to consider the decision relied upon by the learned Counsel for the Petitioner in K.Paulraj v. The

Superintendent of Police, Thoothukudi and Anr. reported in 2009 2 L.W. (Cri.) 1280, wherein this Court has held as follows:

Para 8. Therefore, the learned Judicial Magistrate ought to have taken the petition on file and assigned number in Cr.M.P. and peruse the

complaint, if the allegation constitute a cognizable offence, he ought to have forwarded the same to the concerned police for registration of a case

and for further investigation. It is for the investigating agency to investigate the same.

Considering the above said decision, here, the learned Judicial Magistrate, after assigning number in Crl.M.P. No. 2438 of 2011 and while

perusing the complaint, he came to the conclusion that No. offence is constitute and dismissed the same.

In such circumstances, the decision relied upon by the decision by the learned Counsel appearing for the Petitioner is not applicable to the facts

of the present case. While considering Section 190 Code of Criminal Procedure, along with 156(3) Code of Criminal Procedure, I am of the view

that the learned Judicial Magistrate No. 1, Tuticorin has taken the complaint in Crl.M.P. No. 2438 of 2011 and after perusing the same, he came

to the conclusion that the allegations in the complaint are not constituted any cognizable offence and dismissed the same. Hence, I do not find any

irregularity or illegality in the order passed by the trial Court and this petition is liable to be dismissed.

Accordingly, this criminal original petition is dismissed and the order passed by the Judicial Magistrate No. 1, Thoothukudi in Cr.M.P. No.

2438 of 2011 dated 09.05.2011 is hereby confirmed.