This petition has been filed for a direction to set aside the docket order in unnumbered C.C. No. NIL of 2009 dated 14/07/2009 on the file of the X Metropolitan Magistrate, Egmore, Chennai.
2. A private complaint was preferred by the petitioner herein before X Metropolitan Magistrate, Egmore, Chennai, for an offence punishable under
Section 408 IPC against his power agent on the allegation that the power agent, who sold a portion of the petitioner's land, neither rendered account for the same nor deposited the amount with the petitioner. The learned Magistrate returned the complaint without seeking for any clarification / explanation by the following endorsement dated 14.07.2009.
"Perused Records. Complaint mentioned in this petition about his share as 1/6 in immovable property and also mentioned about sale proceedings. This is purely in civil nature. File before prompt court. Hence returned."
3. Learned counsel for the petitioner submits that the accused, who has been entrusted with the property and authorized by the petitioner to execute a sale deed on his behalf with the purchaser, failed to perform such duty in his capacity as Power Agent. Prima Facie materials are available to proceed against him and even a bare perusal of the averment of allegations in the complaint would go to show that an offence under
Section 408 IPC is made out. It is further submitted that the learned Magistrate should have sought for clarification before returning the complaint. In support of his submission, learned counsel relied on the case law in Som Nath Puri Vs. The State of Rajasthan(AIR 1972 SC 1490) wherein it is held as follows:
"(i) The expression, "entrusted in
Section 409 is used in a wide sense and includes all cases in which property is voluntarily handed over for a specific purpose and is dishonestly disposed of contrary to the terms on which possession has been handed over. As long as the accused is given possession of property for a specific purpose or to deal with it in a particular manner, the ownership being in some person other than the accused, he can be said to be entrusted with that property to be applied in accordance with the terms of entrustment and for the benefit of the owner. It may be that a person to whom the property is handed over may 'cc an agent of the person to whom it is entrusted or to whom it may belong in which case, if the agent who comes into possession of it on behalf of his principal, fraudulently misappropriates the property, he is nonetheless guilty of criminal breach of trust, because, as an agent he is entrusted with it. A person authorized to collect moneys on behalf of another is entrusted with the money when the amounts are paid to him, and though the person paying may no longer have any propriety interest, nonetheless, the person on whose behalf it was collected become the owner as soon as the amount is handed over to the person so authorized to collect on his behalf. (502 D)"
Learned counsel for the petitioner further submits that the learned Magistrate, instead of returning the complaint, should have taken the same on his file and decided the issue one way or the other. Learned counsel relied upon the decision reported in 2000-1-L.W.(Crl.) in A.Viayagam V. Dr. Subash Chandran case wherein it is observed as follows:
"Law does not provide for returning of the complaint - It is not a "power" of the Magistrate to accept a complaint, that is the "duty" on the part of court - Examining of defects in the complaint, when to be undertaken - Formal defects, how to be dealt with - Magistrate can appoint a day for consideration of the complaints and the party may then cure the defects with the leave of the Magistrate - Returning of the complaint by the Magistrate with or without endorsements is not a course known to law - Practice of giving number to complaint only on their registration, and only at the time when summons is ordered to be issued, is a completely incorrect practice - Complaint presented to the Magistrate and kept aside for consideration must be noted in the concerned Court Register."
5. Having regard to the facts and circumstance involved and the materials provided by the learned counsel for the petitioner, I am of the considered view that instead of returning the complaint at the inception, the learned Magistrate would have taken the same on file for decision and therefore, the "return endorsement" is liable to be set aside. Consequently, the learned X Metropolitan Magistrate is directed to take up the complaint on file and dispose of the same in accordance with law at the earliest.
6. Accordingly, the Criminal Original Petition is ordered.
Ar To
1. X Metropolitan Magistrate