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Kishan Thakurdas Gokalani and Another Vs. Gopichand Jodhram Devnani and Another - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtMumbai High Court
Decided On
Case NumberCriminal Appln. No. 182 of 1980
Judge
Reported in1981CriLJ1325
ActsConstitution of India - Article 227; Indian Penal Code (IPC), 1860 - Sections 463 and 465; Code of Criminal Procedure (CrPC) , 1973 - Sections 195, 195(1) and 482
AppellantKishan Thakurdas Gokalani and Another
RespondentGopichand Jodhram Devnani and Another
Excerpt:
.....where there is legal evidence which on its appreciation may or may not support the accusation in question. in exercising its jurisdiction under section 561-a the high court would not embark upon an enquiry as to whether the evidence in question is reliable or not. again on the complaint it is not quite clear whether the forgery had taken place at ulhasnagar or pimpri and in view of the uncertainty prevailing on the record it cannot be stated precisely that the offence had taken place at ulhasnagar and not within the jurisdiction of kirkee......of the two hundis under section 463 read with section 465 of the i.p.c. in respect of both these hundis civil suits had been filed in the court of the learned civil judge, junior division, at ulhasnagar, and the documents had been filed as exhibits in that court. that being the case, the learned judicial magistrate could not take cognizance of the complaint in respect of the two hundis filed by respondent no. 1. in such a case only a civil court could file a criminal complaint under the provisions of section 195(1)(b)(ii) of the cr.p.c.8. before dealing with the contentions raised by shri angal, it will be pertinent at this stage to consider the ambit of the inherent power of this court under section 482 of the cr.p.c. to interfere and to quash proceedings of the lower court at the.....
Judgment:
ORDER

1. This Criminal Application has been filed under Section 482 of the Code of Criminal Procedure and under Article 227 of the Constitution of India praying that the proceedings in the Court of the learned Judicial Magistrate, First Class, Kirkee, in Criminal Case No. 2244/1979 of that Court be quashed.

2. The two petitioners herein claim to be citizens of India and carried on their business at Ulhasnagar. Respondent No. 1 resided at Pimpri, District Pune. During his lifetime, the father of respondent No. 1 had executed two Hundis, each for Rs. 20,000/- in favour of petitioners Nos. 1 and 2 respectively. The father of respondent No. 1 died in Or about the year 1978. The 1st petitioner thereupon filed a Summary Suit in the Court of the Civil Judge, Junior Division, at Ulhasnagar, against respondent No. 1 and others, the heirs and legal representatives of Hardasmal Devnani, claiming a decree on the basis of the Hundis. After the filing of the suit, the 1st petitioner applied to the Court for an Order for Attachment before Judgment of the property belonging to respondent No. 1. The learned Civil Judge, Junior Division, Ulhasnagar, was pleased to grant an ex parte order on 26th May, 1978 directing Attachment before Judgment. The same Court was pleased to confirm the Attachment before Judgment by its Order dated 2nd August, 1978. Thereafter respondent No. 1 preferred an Appeal, being Miscellaneous Appeal No. 62 of 1978 against the said Order of Attachment before Judgment in the Court of the Extra Assistant Judge, Thane. The learned Extra Assistant Judge was pleased to dismiss the Appeal on 18-12-1978.

3. The 1st petitioner thereafter took out a Summons for Judgment in Regular Civil Suit No. 25 of 1978. In that suit respondent No. 1 was granted conditional leave to defend on his depositing in Court a sum of Rs. 20,000/-. Against the said order of deposit of Rupees 20,000/- respondent No. 1 preferred a Civil. Revision Application, being Civil Revision Application No. 329 of 1979 in the High Court at Bombay, which was pending.

4. The 2nd petitioner filed a Regular Civil Suit in the Court of the learned Civil Judge, Junior Division, Ulhasnagar, being Civil Suit No. 117 of 1978 against respondent No. 1 and others as the heirs and legal representatives of Hardasmal Devnani, praying for a decree for Rupees 20,000/- on the basis of the Hundi. In that suit also the 2nd petitioner made an application for attachment before judgment. The learned Civil Judge, Junior Division, was pleased to grant an ex parte order in the first instance and after hearing both the parties was pleased to confirm the order of attachment before judgment.

5. Respondent No. 1 thereafter preferred an appeal in the Court of the learned Extra Assistant Judge, Thane, being Appeal No. 63 of 1978 against the said order of attachment before judgment. The learned Extra Assistant Judge was pleased to dismiss the said Appeal., Thereafter respondent No. 1 filed a criminal complaint in the Court of the learned Judicial Magistrate, First Class, Kirkee, being Criminal Case No. 2244 of 1979 of that Court against the two petitioners herein charging them with forgery of the two Hundis under Section 463 read with Section 465 of the Indian Penal Code. The learned Judicial Magistrate was pleased to issue process under Sections 463 and 465 of the I.P.C. against the two petitioners herein. The petitioners have now moved this Court for the exercise of its inherent powers under Section 482 of the Cr.P.C. as also for the exercise of its supervisory powers under Article 227 of the Constitution of India.

6. Shri. Angal, the learned advocate appearing on behalf of the petitioners, has raised, two questions of law in this petition. Firstly, Shri Angal has submitted that the learned Judicial Magistrate, First Class, Kirkee, had no jurisdiction to entertain the complaint for the reason that the two transactions of execution of the Hundis had taken place at Ulhasnagar. The deceased Hardasmal Devnani was also a resident of Ulhasnagar and carried on his business there. That being the case, the learned Judicial Magistrate, First Class at Kirkee. was in error in taking cognizance of the offence, if any, and issuing process to the petitioners.

7. Shri Angal's second submission was that the entire complaint filed by respondent No. 1 was misconceived and the learned Judicial Magistrate was barred from taking cognizance of the complaint under the provisions of S. 195(1)(b)(ii) of the Cr.P.C. Shri Angal contended that the two petitioners were being prosecuted by respondent No. 1 for forgery of the two Hundis under Section 463 read with Section 465 of the I.P.C. In respect of both these Hundis civil suits had been filed in the Court of the learned Civil Judge, Junior Division, at Ulhasnagar, and the documents had been filed as exhibits in that Court. That being the case, the learned Judicial Magistrate could not take cognizance of the complaint in respect of the two Hundis filed by respondent No. 1. In such a case only a Civil Court could file a criminal complaint under the provisions of Section 195(1)(b)(ii) of the Cr.P.C.

8. Before dealing with the contentions raised by Shri Angal, it will be pertinent at this stage to consider the ambit of the inherent power of this Court under Section 482 of the Cr.P.C. to interfere and to quash proceedings of the lower Court at the interlocutory stage.

9. The Supreme Court in the case of R. P. Kapur v. State of Punjab, reported in : 1960CriLJ1239 was pleased to observe :-

'Before dealing with the merits of the appeal it is necessary to consider the nature and scope of the inherent power of the High Court under Section 561-A of the Code. The said section saves the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code or to prevent abuse of the process of any court or otherwise to secure the ends of justice. There is no doubt that this inherent power cannot be exercised in regard to matters specifically covered by the other provisions, of the Code ....... It is well established that the inherent jurisdiction of the High Court can be exercised to quash proceedings in a proper case either to prevent the abuse of the process of any court or otherwise to secure the end of justice. Ordinarily criminal proceedings instituted against an accused person must be tried under the provisions of the Code, and the High Court would be reluctant to interfere with the said proceedings at an interlocutory stage. It is not possible, desirable or expedient to lay down any inflexible rule which would govern the exercise of this inherent jurisdiction. However, we may indicate some categories of cases where the inherent jurisdiction can and should be exercised for quashing the proceedings. There may be cases where it may be possible for the High Court to take the view that the institution or continuance of criminal proceedings against an accused person may amount to the abuse of the process of the court or that the quashing of the impugned proceedings would secure the ends of justice. If the criminal proceeding in question is in respect of an offence alleged to have been committed by an accused person and it manifestly appears that there is a legal bar against the institution or continuance of the said proceeding the High Court would be justified in quashing the Kishan Thakurdas v. Gopichand Jodhram proceeding on that ground. Absence of the requisite sanction may, for instance, furnish cases under this category. Cases may also arise where the allegations in the First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety, do not constitute the offence alleged; in such cases no question of appreciating evidence arises it is a matter merely of looking, at the complaint or the First Information Report to decide whether the offence alleged is disclosed or not. In such cases it would be legitimate for the High Court to hold that it would be manifestly unjust to allow the process of the criminal court to be issued against the accused person. A third category of Cases in which the inherent jurisdiction of the High Court can be successfully invoked may also arise. In cases falling under this category the allegations made against the accused person do constitute, an offence alleged but there is either no legal evidence adduced in support of the case or evidence adduced clearly or manifestly fails to prove the charge. In dealing with this class of cases it is important to bear in mind the distinction between a case where there is no legal evidence or where there is evidence which is manifestly and clearly inconsistent with the accusation made and cases where there is legal evidence which on its appreciation may or may not support the accusation in question. In exercising its jurisdiction under Section 561-A the High Court would not embark upon an enquiry as to whether the evidence in question is reliable or not. That is the function of the trial Magistrate, and ordinarily it would not be open to any party to invoke the High Court's inherent jurisdiction and contend that on a reasonable appreciation of the evidence the accusation made against the accused would not be sustained. Broadly stated that is the nature and scope of the inherent jurisdiction of the High Court under Section 561-A in the matter of quashing criminal proceedings.'

10. Keeping the principles enunciated above in mind, I shall now consider the submissions made by Shri Angal. The first contention of shri Angal was that the learned Judicial Magistrate, First Class, Kirkee, had no jurisdiction to take cognizance of the complaint for the reason that the transactions constituting the offence had taken place at Ulhasnagar. According to Shri Angal, Hardasmal Devnani had executed both the Hundis for Rs. 20,000/- each at Ulhasnagar. Assuming the facts mentioned in the complaint to be correct, both the accused were residents of Ulhasnagar and carried on their business there. If the Hundis had been forged by the two petitioners then the forgery could have taken place only at Ulhasnagar and, therefore, the learned Judicial Magistrate had erred in taking cognizance of the complaint. It may be pointed out that according to respondent No. 1, his father Hardasmal Devnani had obtained the advance on the basis of the two Hundis. for the purpose of constructing a cinema theatre known as 'Cinema Deluxe' at Pimpri, Poona. Hardasmal, therefore, used to visit Pimpri during his lifetime off and on. It is, therefore, possible that the Hundis may have been executed at Pimpri. Again on the complaint it is not quite clear whether the forgery had taken place at Ulhasnagar or Pimpri and in view of the uncertainty prevailing on the record it cannot be stated precisely that the offence had taken place at Ulhasnagar and not within the jurisdiction of Kirkee. I am, therefore, not inclined to accept the submission made by Shri Angal.

11. Shri Angal, however, is on stronger grounds in making his second submission. As I have mentioned heretofore, the two Hundis alleged to have been forged are the subject matter of two civil suits in the Court of the learned Civil Judge, Junior Division at Ulhasnagar. Certain interlocutory orders have been obtained in the suits pending in that Court and the two Hundis at present form part of the record of those cases as exhibits. Shri Angal is, therefore, justified in invoking the bar of Section 195 of the Cr.P.C. against respondent No. 1. Section 195(1)(b)(ii) of the Cr.P.C. provides :-

'195(1). No Court shall take cognizance -

(a) & (b) (i) x x x x (ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or

(iii) x x x x x except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.

(2) x x x x x (3) In Clause (b) of sub-section (1), the term 'Court' means a Civil, Revenue or Criminal Court, and includes a tribunal constituted by or under A Central, Provincial or State Act if declared by that Act to be a Court for the purposes of this section.'

12. There is no dispute that the two impugned Hundis at present are part of the evidence of the two suits filed in the Court of the learned Civil Judge, Junior Division at Ulhasnagar. The complaint filed by respondent No. 1 relates to forgery of those two documents and that being the case the bar of Section 195(1)(b)(ii) of the Cr.P.C. would apply to the complaint filed by respondent No. 1. It will, therefore, be appropriate to invoke the inherent power of this Court for the purpose of quashing the complaint even at the interlocutory stage. I accept the submission made by Shri Angal.

13. In the result, the Rule is made absolute. The proceedings in Case No. 2244 of 1979 on the file of the learned Judicial Magistrate, First Class, Kirkee, are quashed.

14. Application allowed.


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