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TMI Blog2000 (1) TMI 1031X X X X Extracts X X X X X X X X Extracts X X X X ..... J. had held that once the complaint for an offence under Section 138 of the Negotiable Instruments Act was presented within limitation and that presentation was noted by the court, even if the complaint is returned back to the complainant by the court and re-presented after the period of limitation still the complaint would be held to have been presented in time. Admittedly, a contrary view has been taken in G.L. Srinivasan v. M/s. Dhanalakshmi Industries, rep. by its Managing Partner Maruthachalam Chettiar, Crl.R.C. No. 933 of 1993, wherein Raman, J. has held that if such complaint, which is filed in time, but returned to the party for re-presentation, is re-presented after the period of limitation then the court is precluded from taking cognizance on the ground for limitation provided under Section 142 of the Negotiable Instruments Act. 3. It is on this conflict that the two matters have come before us. Before we advert to the law involved in the matter, it would be better to note some salient factual features. In Crl.O.P. No. 10902 of 1998, the complaint was filed on 29.11.1995, which was admittedly within limitation of one month as provided under Section 138 of the Negotiabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate, in the sense that the Magistrate had not even taken cognizance of those complaints, the result would be that the complaints were never presented. He also pointed out that when the complaints were returned, the Magistrate had not fixed any dates for their re-presentation. The learned counsel urges that the complainants chose the dates for themselves for re-presenting the complaints, which were essentially beyond the period of limitation. The Magistrate, therefore, took the cognizance of the complaints on the dates, when the Magistrate could not have taken the cognizance because of the bar of limitation. Learned counsel also argued that the subsequent re-presentation could not have related back to the original date of presentation as there was, in fact, no presentation in law on the original date. In short, learned counsel relied on the judgment of Raman, J. and pointed out that both the complaints were bound to be quashed as barred by limitation. He has also relied on few decisions of the Supreme Court and this Court, which suggest that the law of limitation has to be interpreted in the strict terms and, therefore, any complaint filed beyond the period of limitation as p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arthanam, J. and Raman, J., that is both the learned Judges have observed that the Magistrate concerned had power to return back the complaint filed before him. In his judgment, Janarthanam, J. has observed in paragraph 14: there is no specific provision available either in the Code of Criminal Procedure or in the Criminal Rules of Practice or in the special law like the Negotiable Instruments Act as to the return to be made for rectification of defects in the complaint presented before court. But, nonetheless once the power inheres in favour of the court to receive a complaint, it goes without saying that the power to receive a complaint must imply in itself the power to return it for rectification of the defects if any, noticed. To the similar effect the observations by Raman, J., who observed in paragraph 6: It is no doubt true that in the Criminal Rules of Practice as well as in the Criminal Procedure Code, there is no provision empowering the Magistrate to return a complaint. It is equally true that when a court has a right to take a complaint on its file, it has equally the power or right to return the complaint. Both the learned Judges, therefore, have see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his own wrong of presenting a defective complaint and then taking an opportunity of filing the complaint any time that suited the complainant, which date was beyond the limitation. In paragraph 7, the learned Judge has held that since the Magistrate had not ordered issue of summons on the initial date and since he had at first applied his mind for not proceeding further . The learned Judge actually says: he did not order process to the accused. Therefore on 3.6.1991, he did not take cognizance. He took cognizance only on 24.9.1991, after the period provided by Section 142(b). Thus it is clear that the learned Judge has, after finding that the Magistrate has power to return the complaint, also recorded a further finding that initially, while finding the defect in the complaint, the Magistrate had not taken cognizance. Again the learned Judge has mentioned that the cognizance was taken by the Magistrate only on the date when he issued summons. The learned Judge has then proceeded to hold that since the date of re-presentation of the complaint was beyond the period of limitation as provided by Section 142, the Magistrate had obviously erred in taking cognizance beyond the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the first instance was not a proper presentation. Only when the complaint is filed into court with the acknowledgement card it becomes a complaint and proper presentation. Therefore in such circumstances, the mere fact of return by the court of the complaint in my view will not in any manner save the complaint from the bar of limitation impose by section 142(b). Therefore it has to be held that the complaint is not maintainable and hence the order of the court below has to be set aside . The learned Judge in the last paragraph then has taken the stock of the complaint on merits and has also taken the note of the portions added to the complaint, which wad originally not there, and has ultimately chosen to al,low the revision, by quashing the prosecution. 10. As has already been observed earlier, both the learned Judges appear to have of the opinion that there was ample power or jurisdiction in the Magistrate to return the complaint for curing the defects (probably because the Magistrate had the power to accept the same) and that the crux of the matter was in the Magistrate not fixing the period for re-presentation. Janarthanam, J. has taken a further view that even if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used persons complained against . The rule is clear that the complaint shall be received by the Magistrate and when in writing, the complainant shall present along with the complaint with copies thereof for the accused persons complained against. 13. Complaint , in Criminal Procedure Code, is defined vide section 2(d). Section 2(d) as under: complaint means any allegations made orally or in writing to a Magistrate, with a view to his taking action under this code, that some person, whether known or unknown, has committed an offence, but does not include a Police report. Explanation - A report made by a Police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the Police Officer by whom such report is made shall be deemed to be the complainant; Therefore, one thing is certain that when a document styled as a complaint is to be filed by the complainant, it has to be presented to the Magistrate along with adequate number of copies of the complaint. In the same tune is Rule III, which is to be the following effect: 111. Complaints to be presented in person or by pleader. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... complaint, much less returning the complaint. It is not possible for a Magistrate to return the complaint for the so called defects and if the defects are there in the complaint, the complainant has to suffer. There is no warrant in the Criminal Procedure Code or the Criminal Rules of Practice, empowering the Magistrate to return then complaint just because he thinks that there are any defects. In this behalf, the observation by both the learned Judges that the Magistrate has a power to return the complaint because he has a power to accept is clearly incorrect. In the first place, the Magistrate does not have a Power to accept the complaint. That is not the power of the court. That is the duty on the part of the court in contradistinction to its Powers . Again unless there is a specific provision in the Code or the Rules, the Magistrate cannot find out his own procedure by returning the complaint as it is. In fact, when the complainant presents the case to the Magistrate that is not the stage of examining the defects and it is not for the Magistrate to examine the so called defects in the complaint. All that the Magistrate has to do is to consider the same by ordering the exam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court-fee stamps were cancelled. Therefore, it will have to be held that the papers became the court's property and merely because the complaints were returned to the complaints, the papers did not lose their character as the court's property. If that be so, then even if the complaints were re-presented after the period of limitation, it would be of no consequence and the date of original presentation would have to be deemed to be the date of presentation. If that was within limitation, the complaints would have to be treated as within limitation. 17. In this behalf, we may also consider one more fact and that is Rules 9, 10 and 11 under Chapter IV, which is for Institution of Proceedings , of the Madras High Court Appellate Side Rules, 1963, Rule 9 reads as: 9 (1) Every proceeding which is not instituted in conformity with the provisions of the Code, or of these rules or of any special enactment or of the rules applicable to it, shall be returned to the amendment and representation. Unless the Registrar prescribes a shorter period, the proceeding shall be represented after compliance with all the defects pointed out, within ten days after the notification of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. When the Magistrate applies his mind to the complaint and proceeds along with it in the manner provided by Section 200 and onwards, the Magistrate has taken cognizance of the complaint. Issuing of process or dismissing the complaint under Section 203 has got nothing to do with the taking cognizance, though taking cognizance is an essential step to be taken by the Magistrate before either issuing summons, postponing to issue summons or acting under Section 203 in dismissing the complaint. The position in law in that behalf is completely settled. We therefore do not agree with Raman, J. when the learned Judge suggests that the initial filing of the complaint without the necessary documents was defective filing and, therefore, amounted to no filing. It must be taken that the complaint was filed when it was properly presented to the court along with the proper court-fee. The further technical defects have no concern with this filing and the Magistrate, at that stage, cannot start pointing out those defects to the parties and, on that basis, return the complaint and the whole papers to the complainant or to his counsel. 19. In this behalf, it was pointed out by Mr. Om Prakash, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be noted in the concerned court register. There would be no question of such a complaint lying in the custody of the Magistrate also without any endorsement or without being reflected in the register maintained by the court. It is necessary that a separate register may be maintained in every court where such complaints could be entered. That would undoubtedly give a sanction to such presentation and would be a additional check regarding the limitation. However, it is unthinkable that the Magistrate should have a power just to return back the papers without doing anything and to direct the complainant or as the case may be his counsel to re-present the complaint whenever it pleases them. 21. It has been found by Raman, J. that for lodging a complaint under Section 138 steps are required to be taken within the time-frame provided under Section 138. There could be no doubt about that. However, from that alone it cannot be said that the relevant time of filing the complaint should coincide necessarily with the Magistrate's taking cognizance. Section 142 of the Negotiable Instruments Act is as under: 142. Cognizance of offences - Notwithstanding anything contained in the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 22. Turning now to the cases at hand, it is clear that the complaints in both the cases were filed in time. There is no dispute about the same. The Magistrates in both the cases have returned the papers to the complainants by making some endorsements thereupon. The learned counsel Mr. Packiaraj urged that those endorsements amounted to rejection of the complaints under Section 203 of the Code of Criminal Procedure and, therefore, the complainants should have filed further proceedings, challenging those endorsements, treating them to be judicial orders. In the first place, the said endorsements could not be termed to be judicial orders. They could at the most be termed to be administrative orders. Any judicial order could have been passed by the Magistrate, at that stage, only after examining the complainant and/or his witnesses. Without that, the Magistrate had no jurisdiction to pass any orders. Therefore, those orders cannot be simply described as the judicial orders and consequently, the complainants cannot be held guilty for not challenging them in the proper forum by way of a revision or appeal, as the case may be. Those order would have to be deemed as non est orders. Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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