ALEXANDER VARGHESE Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner, who is the complainant in CMP No. 533/2006, the private complaint filed alleging offences under S.420 and 405 of the Indian Penal Code, has sought for setting aside the order of the Court below dismissing the complaint at the threshold, on the ground that the complaint is filed by the Power of Attorney Holder on behalf of the aggrieved. It is submitted that the allegation is that the accused committed cheating with respect to a sum of Rs. 25,50,000/-, the amount paid with respect to the construction of a residential building for one Joy Chacko who is working in the United States. The amount was paid to the accused who misrepresented himself as an engineer who is running a construction firm. The above Joy Chacko is the 1st witness to the complainant. . The alleged victim of cheating is the cousin of the Power of Attorney holder. It is submitted that the Court below has erred in dismissing the complaint i.e., Annexure A1, filed under S.190 read with S.200 CrPC. It is the settled law that except certain specified offences mentioned in S.198, 198A and 199 CrPC the rest can be brought to the notice of the Court by any person. It is further pointed out in the instant case that the petitioner himself is the complainant and the aggrieved is arrayed as the 1st witness. The counsel has also relied on the term "complaint" as defined in S.2(d) of the CrPC as "any allegation 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".

(2.) The term complainant is not defined in the Code. The above indicate that it is not mandatory that the complainant himself must file a complaint. It is also pointed out that when the Magistrate takes cognizance of a matter, he is taking cognizance of the offence and not the offender and what the magistrate has to consider is whether the complaint discloses an offence or not. It is also pointed out that the compliance of Chapter XV of the Code arises only after taking cognizance and that the apprehension whether the complainant could comply with the provisions of Chapter XV is not a ground to dismiss a complaint. The observations of the Court below that the examination of the aggrieved person is necessary to proceed is incorrect. What is contemplated under S.200 is the examination of the complainant and the witnesses present only. The Court below has earlier dismissed the complaint filed by the aggrieved person Shri. Joy Chacko through the Power of Attorney holder vide order in CMP No. 6228/2005, on the ground that the Power of Attorney holder is not competent to file the complaint. Thereafter, the complaint filed by the Power of Attorney Holder was also dismissed without leaving any remedy to the person who was cheated.

(3.) It is the allegation that the entire construction has been done not as per the instructions and plan etc. and using substandard materials and that the aggrieved was trapped on account of the misrepresentation of the accused that he is a qualified engineer and is running a construction firm, which was found to be false. The details of the payments and the documentary evidence as to the payments received by the accused are also produced along with the complaint vide Annexure A2 series. In Annexure A3 order it is mentioned that the present Power of Attorney holder had filed another complaint as CMP No. 6228/2005 as the Power of Attorney holder of Shri. Joy Chacko and the same was dismissed. The second complaint, that is an instant one has been filed by the Power of Attorney holder himself as the complainant and the real aggrieved is cited as the 1st witness and the same cannot be entertained by virtue of provisions under S.190 read with 200 CrPC. The Court has noted that as per S.190 read with 200 CrPC only the real aggrieved person can file the complaint before the Court and on presentation of the complaint, the complainant has to be examined on oath and the witnesses present are also to be examined on oath. According to the Court below what is contemplated under S.190 is that the person really aggrieved can only file the complaint and the person cannot be substituted by another person and that what is required is the physical examination of the complainant under S.200 CrPC. According to the Court below, the court taking cognizance has to form a subjective opinion in an objective manner and the same is possible only by physical examination of the complainant. Annexure 4 is the order dismissing CMP No. 6225/2004 filed by the present complainant as Power of Attorney holder representing Shri. Joy Chacko who was mentioned as the complainant. In the above order also the Court relied on the same reasoning that as per S.202(1)(b) CrPC, examination of the complainant and witnesses present on oath are mandatory.