P L D 1963 Dacca 357 (PLP)

A. Rab and Syed Muhammad Ali : In support of Reference. A. Aziz: In opposition to Reference. SATDAR, J.‑This Reference under section 438 of the Code of Criminal Procedure is by the Sessions Judge of Jessore. The learned Judge has recommended that the order dated the 3rd of April 1961, summoning some accused persons under section 420 of the Pakistan Penal Code by the Sub‑Divisional Officer should be set aside as the petition of complaint on which the above order was passed was not filed by the person alleged to have been cheated by the accused.

2. The facts of this case are that a First Information Report was lodged by one Jagadish Chandra Roy with the Police alleging that his aunt, Aruna Bala Dassi, had been cheated by the accused persons in respect of certain transactions. The Police rafter investigation submitted final report and also submitted that Jagadish Chandra Roy should be proceeded against under section 5.1 (sic) of the Pakistan Penal Code. A Naraji petition was filed by Jagadish Chandra Roy which was sent for enquiry to the Medical Officer, Gobra Charitable Dispensary. On receipt of the report the learned Sub‑Divisional Officer by his order, the 3rd of April 1961, summoned the accused person under section 420 of the Pakistan Penal Code. The learned Judge has made the present Reference for setting aside the above order on the ground that as the petition of complaint was not filed by Aruna Bala Dassi herself but by her nephew Jagadish Chandra Roy, the learned Sub- Divisional Officer had no jurisdiction to summon the accused person. This view has been taken by the learned Sessions Judge presumably on the basis of a decision of this Court in the case of Surendra Nath Saha v. The State (P L D 1960 Dacca 528) though no reference has been made to this case in the letter of Reference, I am a party to that decision. The present Reference came up for hearing before a Single Judge of this Court and he has made a reference for re consideration of the above decision, I have considered the position and feel that the above decision needs reconsideration. The law stated therein with regard to complaint by a person cheated, in my view, was rather broadly stated. In that case the appeal of the appellants was allowed on two grounds and their conviction and sentences were set aside. One of these was that there was mis joinder of charges. The second ground, which also found favour with the Division Bench, was that where the complaint of cheat ing before the Court is made not by the person defrauded but by another on his behalf the case started on such a complaint must fail. It is true that the success of a prosecution launched for cheating somebody to a large extent depends, in view of the ingredients of the offence of cheating, upon the examination of the person cheated but having regard to the provisions relating to complaint and cognizance taken by Court it will be incorrect to say that cognizance of an offence of cheating cannot be taken by a competent Court unless the person cheated himself makes the complaint. Section 4 (h) of the Code of Criminal Procedure defines complaint. According to it complaint means the allegation made orally or in writing to a Magistrate with a view to his taking action under the Code that some person whether known or unknown has committed an offence. Section .190 of the Code of Criminal Procedure provides for three different modes in which a Court of competent jurisdiction can take cognizance of an offence. The first is that such cognizance can be taken on receipt of a complaint of facts which constitute such an offence. Sections 195 to 199 of the Code of Criminal Procedure, of course, lay down that cognizance of offences mentioned in those sections can only be taken under certain circumstances. These sections provide for the exceptions to the general rule laid down in section 190 of the Code of Criminal Procedure read with the definition of complaint in section 4 of the Code. An offence of cheating does not fall within the ambit of sections 195 to 199 and there is no other provision in the Code which requires the person cheated to come to Court for the purpose of making a complaint within the meaning of section 190 of the Code of Criminal Procedure. The decision reported in P L D 1960 Dacca 528, was based on two other decisions. One is the case of Sahibzada Muhammad Hayat Khan v. Ghulam Muhammad ((1954) 6 D L R (WPC) 177), in which it was held that the complainant who was not the person cheated had no locus standi to make a complaint with regard to cheating. This decision again is based on another decision by a Single Judge of the Lahore High Court reported in 22 Cr. L J

672. The relevant portion of the judgment in that case runs as follows :‑ " . . . On revision the learned Sessions Judge set aside the order of dismissal, stating that it was not necessary for the person actually cheated, to file a complaint. This view may be correct in law, as under section 190 a Court may take cog nizance of an offence upon information received from any person. It is absurd, however, to expect a Court to take any notice of a complaint of cheating except when it is put in by the person actually defrauded. I think, therefore, that the Magistrate's order dismissing the complaint under section 203, Criminal Procedure Code, was fully justified."

5. The facts of that case are that the Magistrate dismissed the complaint with regard to cheating by some one other than the person cheated under section 203 of the Code of Criminal Procedure. The learned Sessions Judge on revision, however, set aside the order of dismissal observing that it was not necessary for the person actually cheated to file the complaint. The High Court en revision passed the order quoted above. The facts of that case, however, were peculiar inasmuch as that the com plainant in his capacity as a member of the public made successive petitions of complaint against the same set of persons alleging that they had been charging higher rates for oil and were thus cheating the public. It was in those circumstances that the learned Single Judge of the Lahore High Court made the above observa tion and thought that the complaint filed by such a person when dismissed by the learned Magistrate should not be interfered with. I, therefore, feel that the decision reported in P L D 1960 Dacca 528 has stated the law too broadly and cannot, therefore, be followed in view of the clear provisions in the Code to the contrary. The Reference by the Sessions Judge, therefore, is rejected. SIKANDAR ALI, J.‑

I agree. K. E. A. Reference rejected.