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D. Nama Sivaiah Vs. A. Tulsi Reddy and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1972CriLJ1430
AppellantD. Nama Sivaiah
RespondentA. Tulsi Reddy and anr.
Excerpt:
.....against the respondent even assuming that she was guilty of the offence in question as the court had accepted truth of the receipt ex. the words 'brought under its notice in the course of a judicial proceeding' clearly show that the offence should have been brought to its notice during the pendency of the proceeding and a preliminary enquiry should be made and then direct the laying of a complaint......suit o. s. no. 104/59 was also dismissed for default. thereafter namasiviah. the defendant in the suit filed in the court of the district munsif gurazala o. p. 27/63 under section 476(1) cr. p.c. for the prosecution of the plaintiff for offences under sections 467 and 471, i. p.c. after enquiry the court held that it is expedient in the interests of justice to file a complaint against the respondent under section 195(1)(c). cr. p.c. by the court in respect of offences under sections 467 and 471, i. p.c. and directed a complaint being laid accordingly. 3. on appeal in cma no. 27/64 the subordinate judge held that the forgery complained of is true but the lower court had no jurisdiction to complain against the respondent even assuming that she was guilty of the offence in question as the.....
Judgment:
ORDER

A.D.V. Reddy, J.

1. In this petition the Question that falls for determination relates to the interpretation and scope of Section 476 CD Cr. P.C. and arises under the following circumstances:

2. One A. Tulasi Reddy an English knowing business woman of Macherla had taken a land of Ac. 23-25 cents in D. No. 862 of Mandadi village of Gurazala Taluk on 24-2-1966 for a term of five years from the District Collector. Guntur for carrying on quarrying operation in the name and style of 'Ellore Mining and Slabs Works' in partnership with one Kothamasu Venkateswarlu. On account of misunderstanding between them she wanted to buy off her partner and in this connection became indebted to D. Namasivaiah as she had to borrow money from him to pay off her partner and had executed pronotes for the said purpose. Thereafter she entered into an agreement with the said Namasivaiah. whereby he was to become her partner if certain amounts due to him were not repaid to him by 4-2-56. As the amounts were not paid within the time stipulated, Namasiviah became her partner. But on the intervention of mediators he agreed to walk out if the sums due to him to the tune of Rs. 43,519/- were paid in the manner stipulated in the agreement. There were also certain other stipulations with regard to the disposal of some property and the adjustment of the amounts for the debts due. It was further stipulated that in case of default of payment of the instalments as agreed upon, the agreement was to stand cancelled and the original partnership agreement was to be restored. On account of further disputes. Tulasi Reddy filed O. S. No. 104/59 in the Court of the District Munsif. Gurazala against Namasiviah for an injunction without reference to the said Namasivaiah having become a partner at any time and in that suit she also filed I. A. No. 496/59 for grant of interim injunction. In the course of the enquiry in that petition the Dlaintiff-petitioner therein i. e.. Tulasi Reddy filed and relied on a receipt of Ex. A-5 said to have been given by the defendant for a sum of Rs. 15000/-. This was filed durins the course of arguments in that petition. Partly reiving on that receipt the Court confirmed the interim injunction that was granted. During the pendency of the suit the plaintiff had also filed a criminal complaint taken on file as C. C, 215/60 on the file of the Munsif Magistrate against the defendant Namasiviah for an offence under Section 392 I. P.C. with regard to the removal of the stone slabs connected with the quarry. In that enquiry the receipt for Rs. 15000/- filed by the plaintiff-petitioner in I. A. No. 496/59 was summoned as the accused had contended that what he gave was only a receipt of Rs. 5.000/- and not for Rs. 15,000/- as stated therein. It was sent to a Handwriting Expert and was found to be a forged document containing alterations making Rs. 5.000/- to appear as Rs. 15.000/- with an introduction of the additional words 'by bank draft and ten thousands by cash only'. The accused was subsequently acquitted and the appeal thereon was also dismissed. The suit O. S. No. 104/59 was also dismissed for default. Thereafter Namasiviah. the defendant in the suit filed in the Court of the District Munsif Gurazala O. P. 27/63 under Section 476(1) Cr. P.C. for the prosecution of the plaintiff for offences under Sections 467 and 471, I. P.C. After enquiry the Court held that it is expedient in the interests of justice to file a complaint against the respondent under Section 195(1)(c). Cr. P.C. by the Court in respect of offences under Sections 467 and 471, I. P.C. and directed a complaint being laid accordingly.

3. On appeal in CMA No. 27/64 the subordinate Judge held that the forgery complained of is true but the lower Court had no jurisdiction to complain against the respondent even assuming that she was guilty of the offence in question as the Court had accepted truth of the receipt Ex. A-5 that was filed even though it was forged and has passed an order relying thereon in I. A. No. 496/59 and it is not open to the Court to find on a separate application that the receipt was forged and the appellant was liable to be prosecuted for the two offences mentioned above. It also further held reiving on the Judgment of the Full Bench in Inre Padmanabha Hebbara ILR 42 Mad 422 AIR 1919 Mad 410 that the Court cannot lay a complaint if the commission of the offence has been discovered by a Court after judicial proceedings are terminated and that as in this case the suit O. Section 104/ 59 in which the petition I. A. 496/59 for temporary injunction was filed was dismissed for default and the proceedings had terminated it cannot lay a complaint. Hence this petition.

4. Both the Courts have held that prima facie the offence of foreerv has been committed and the Magistrate had directed the laving of a complaint for the offences under Sections 467 and 471, I. P.C. as per the provisions of Section 195(1)(c) Cr. P.C. Section 195 Cri. P.C. bars laying of a complaint either by the individual or by the police in cases where the offences have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceedings. Even though such an offence has been committed if the Court also cannot entertain an application with regard to it subsequent to the closure of the proceedings in the Court it would mean that the culprit can go scot free and the offence can go unpunished as neither the Court nor the party concerned or the police can take steps to prosecute the offender. This will give rise to an anomalous situation especially when such offences are committed in proceedings in Court and are intended to mislead the Court in the dispensation of Justice. Moreover the Full Bench decision cited and relied on by the Subordinate Judge was of the year 1918 long prior to the amendment of the Code with regard to Section 476. Cr. P.C. Before the amendment the section reads as follows:

476: When any Civil. Criminal or Revenue Court is of opinion that there is ground for inquiring into any offence referred to in Section 195 and committed before it or brought under its notice in the course of judicial proceeding such Court after making any preliminary inquiry that may be necessary may send the case for inquiry or trial to the nearest Magistrate of the first class and may send the accused in custody or take sufficient security for his appearance before such Magistrate: and may bind over any person to appear and give evidence on such inquiry or trial-Such Magistrate shall thereupon proceed according to law. and may. if he is authorised under Section 192 transfer cases for the inquiry or trial to some other competent Magistrate.

5. A reading of the section shows that the stage at which these proceedings have to be initiated had been indicated. The words 'brought under its notice in the course of a judicial proceeding' clearly show that the offence should have been brought to its notice during the pendency of the proceeding and a preliminary enquiry should be made and then direct the laying of a complaint. This Section has now been replaced by new Section 476(1) which reads as follows:

476 (1). When any Civil, Revenue or Criminal Court is. whether on application made to it in this behalf or otherwise of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in Section 195 Sub-section (1) Clause (b) or Clause (c). which appears to have been committed in or in relation to a proceeding in that Court such court may after such preliminary inquiry, if any. as it thinks necessary record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court and shall forward the same to a Magistrate of the first class having jurisdiction. and may take sufficient security for the appearance of the accused before such Magistrate or if the alleged offence is non-bailable may if it thinks necessary so to do. send the accused in custody to such Magistrate and may bind over any person to appear and give evidence before such Magistrate.

The words 'brought under its notice in the course of a judicial proceeding' in the old section are not here. No stage is prescribed as to when the proceedings are to be taken. The only limitation placed is that the offence should appear to have been committed in or in relation to a proceeding in the Court and nothing more. The section as it stands does not bar an enquiry by the Court on an application made to it in this behalf or otherwise if it considers that it is expedient in the interests of justice that such a complaint should be filed. Therefore there is no force in the contention that after the termination of the proceedings in the Court no petition for prosecution of the offender can be entertained by the Court and direct a complaint being laid as per the provisions of Section 195. Cr. P.C.

6. It is next contended on behalf of the respondent in the main petition that for an offence which has been committed in 1958 and when there is a civil suit also pending between the parties it is not expedient in the interests of justice to lay a complaint and for this contention a number of decisions including those in Venkataswami v. Laxminaravana : AIR1959AP204 ; Audinarravanamma v. State : AIR1970AP119 and Naravanaswami v. Kolandalvelu : AIR1970Mad267 have been cited. Whether it, is expedient in the interests of justice to lay a complaint should depend on the facts and circumstances of each case. The suit in this case had terminated in 1963 and the fact that the receipt Ex. A5 used by the plaintiff in the proceedings in the suit was a forged one. came to the knowledge of the petitioner during the pend-encv of the criminal case filed against him by the plaintiff in the suit and he had immediately filed the petition 0. P. 27/63 which is the subject matter of the revision in the Court of the District Munsif Gurazala which had dealt with the suit for lavine the complaint. The plaintiff went on appeal and the appeal was disposed of in 1969. It is not open to the respondent to take advantaee of the time taken by the Courts in these proceedings to plead that there is lone lapse of time when the offence was committed and therefore it is not expedient in the interests of justice to now lay a complaint. If such delay is taken into consideration it will be easy for persons concerned to adopt this subterfuge of going from Court to Court either in appeal or in revision and then plead that there has been a long lapse of time since the offence was, committed and hence it is not expedient to lay a complaint now. The delay will not aid the culprit and absolve him of the offence and he cannot on this account escape being prosecuted for the same. I. therefore cannot accept this contention in this case.

7. For the contention that when a Civil case is pending it is not expedient to lay a complaint with regard to the matters to be adjudicated therein reliance is placed on the judgment in Rewashanker Moolchand v. Emperor AIR 1940 Nagpur 72. It is pointed out therein that if by proceeding to prosecute the offender it was calculated to hamper a fair trial of the issue in the Civil Court it would not be in the interests of justice to lay a complaint. That was a case where in a murder trial one of the witnesses who is said to have been the scribe of a will executed by the deceased after making a dying declaration denied the same and the Sessions Judge himself had directed his prosecution for perjury and it was held that no prosecution should be launched with respect to an offence committed in the proceedings before the Court when another civil case is pending. Each case should be dealt with on the facts and circumstances in the case. It cannot be said that as a rule when a civil case has been filed subsequently complaints for offences contemplated under Section 195 Cr. P.C. in relation to prior civil proceedings cannot be filed. The offence said to have been committed in this case is in relation to the proceedings in Civil Suit that had been disposed of. Hence. I do not see any reason to hold that it is not expedient in the interests of justice for the Court to lay a complaint.

8. In the result the Revision case is allowed and the order of the Subordinate Judge is set aside and that of the Munsif Magistrate is confirmed.


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