S ACHI AMMAL Vs. S RAMAKRISHNAN AND THANGAMMAL

JUDGEMENT

(1.) The petitioner herein has filed the petition to set aside the order passed by the learned Judicial Magistrate No. III, Tirunelveli in Cr.M.P. No. 396 of 2010, dated 25.01.2010, wherein the private complaint given by the petitioner has been taken without recording the sworn statement.

(2.) The learned Counsel for the petitioner submitted that when the complaint preferred by the learned Judicial Magistrate having the jurisdiction, a duty is caused upon him to record the sworn statement of the complainant and the statement of the witnesses available and only after analysing the same, come to the conclusion whether the power under Section 156(3) can be exercised or not by directing the concerned police to register the complaint or taking the same as a private complaint. The learned Counsel for the petitioner further submitted that in the absence of the said procedure, the order passed by the learned Judicial Magistrate No. III, Tirunelveli is liable to be set aside, since in the present case on hand admittedly neither the sworn statement of the petitioner nor the statement of the witnesses have been recorded. The learned Counsel for the petitioner relied on a judgment in Pachaiappan Veerappan v. M.A. Sirajuddin,2010 1 MadLJ(Cri) 956, in support of his contention.

(3.) Per contra, the learned Counsel for the respondents submitted that the case is of purely civil in nature and he also produced the sale deed dated 03.03.1945, release deed dated 23.01.1990 and the subsequent sale deed dated 27.11.2008, in support of his contention. Therefore, he prayed for dismissal of this petition.