VIJAYALAXMI Vs. THOMAS

JUDGEMENT

(1.) One of the questions arising for decision in this case is whether in a case where the Police files Refer Report in a case sent up for investigation under S.156(3) of the Cr.P.C. the Magistrate is free to take cognizance without a protest complaint; but based on a fresh private complaint. Petitioners are two out of 13 accused in a case before the Chief Judicial Magistrate Court, Trichur which was registered on the basis of Annexure - A complaint filed on 15.5.1999. The complainant therein who is the present 1st respondent was a former Director of the company by name, Kuriland (P) Ltd., of which the present petitioners 1 and 2 were Director and Manager respectively. Offences under S.3, 5(a)(b)(c)(i) and S.6 of the Prize Chit and Money Circulation Banning Act, 1978 read with S.417 and 420 of the IPC were alleged against them.

(2.) The learned counsel for the petitioners submitted that there was an earlier complaint filed on 9.3.1999 raising the very same averments which was referred to the Police for investigation under S.156(3) of the Cr.P.C. They registered the case as Crime No. 144/99 of the Trichur Town East Police Station. Pursuant to investigation a Refer Report was, however, presented in that case. The Police as also the trial Magistrate issued notice to the present 1st respondent (complainant) with regard to that final report. Instead of pursuing that matter, the complainant, however, chose to file a fresh complaint based on which the Learned Magistrate has taken cognizance. The said action violates the principle of Res judicata. Yet another contention is that the complainant has no locus standi in so far as he is not a subscriber of the chitty and is only an Ex - Director like the 1st respondent. The counsel further submits that the averments in Para.5 and 6 of the complaint are totally insufficient to bring out any offence under the Prize Chit and Money Circulation Scheme (Banning) Act, 1978, (for short Act 43/78) which is one of the enactments under which cognizance is sought to be taken especially when neither of the petitioners are now continuing in office in the Kuri company.

(3.) The learned counsel for the 1st respondent submitted that the petitioners plea itself is barred by Res judicata in so far as the present petitioners had earlier filed Crl. M.C. No. 1735/1999 which was dismissed by this Court. According to her the merits of the contentions need not be gone into and the petition can be summarily dismissed as being hit by Res judicata.