RAJAN GEORGE Vs. STATE OF KERALA

JUDGEMENT

(1.) A complaint alleging offence punishable under S.138 of the Negotiable Instruments Act, 1881 (hereinafter referred to as "the Act") was filed by the petitioner through his pleader. The complainant could not be present before the court on the day of presentation of the complaint as he was hospitalised due to a motor accident. The complaint was filed on the last day of limitation, but the same was returned by the Judicial First Class Magistrate's Court II, Ernakulam holding that there is no provision in the Code of Criminal Procedure enabling the Court to receive a complaint under S.200 of the Code in the absence of the complainant. This order is under challenge. So, the question to be considered in this petition is whether a complaint could be presented before the Court by a pleader in the absence of the complainant.

(2.) S.190 Cr.P.C. empowers a Magistrate to take cognizance of any offence (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed. S.200 Cr.P.C. deals with the procedure in case a complaint is filed before the Magistrate. The Magistrate taking cognizance of the complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses and also by the Magistrate. But the proviso to S.200 Crl.P.C, makes it clear that when the complaint is made in writing, the Magistrate is not bound to examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a court has made the complaint and / or if the Magistrate makes over the case for enquiry or trial to another Magistrate under S.192.

(3.) S.142 of the Act provides thus