1. This is an application under Section 115, Civil P.C., against an order of the learned Additional District Judge of Moradabad affirming in substance the complaint made by the learned Munsif under Section 193, Penal Code. The facts cover a long period and are somewhat involved. Briefly they are these : On 15th August 1931 Shiam Sunder and Ram Chander executed a promissory note in favour of a man named Bhagwan Chand. Bhagwan Chand died and his two sons, Vinay Prakash and Krishna Prakash, brought a suit on its basis on 8th August; 1939. It was alleged that the promissory note had been kept alive by certain acknowledgments. The claim was made for a sum of Rs. 2140 after giving credit for Rs. 203. For 13th September 1939 the hearing of the case was fixed and on that day, at the request of the defendant, the case was adjourned conditional on his payment of a sum of Rs. 21. 26th September 1939 was fixed for filing the written statement and 10th October was fixed for the settlement of issues. On 30th September 1939 the written statement was filed, but it was struck off. It might be mentioned that there was a plea in the written statement that the payment of Rs. 450 was made towards a partial discharge of the debt. On 10th October 1939 issues were settled and the statement of Shiam Sunder was recorded. It is this statement which forms the basis of the subsequent proceedings. To the precise terms of the statement we shall come a little later. On the same day an ex parte decree was passed and the defendant challenged this by means of an appeal.
2. There is another chapter in this litigation which might also be mentioned. Against the order striking off the defence there was an appeal to the District Judge. The appeal was allowed and the case was sent back. The defendant applied for a refund of the court-fee but this prayer was refused. He came in revision against it. This application for revision was allowed by a learned Judge of this Court on 25th September 1941. The record of the case remained in this Court after the presentation of the application in revision up to at least 24th February 1942. After the remand the case was taken up on 6th August 1940. Shiam Sunder was examined and so was a witness on his behalf, namely, Liaqat Husain. On 7th August 1940 an application to withdraw the plea of payment embodied in the written statement was made by Shiam Sunder. On 9th August 1940 the suit was decreed. On 14th December 1940, two applications were made against Shiam Sunder and one against Liaqat Husain by Vinay Prakash and Krishna Prakash. praying that proceedings under Section 476 be started against both. The applications against Shiam Sunder were treated as one Misc. case No. 75 and that against Liaqat Husain as Misc. case No. 76. It is significant that on this date the record was made in this Court and a prayer was made on behalf of the plaintiffs for the adjournment of the case till the return of the record from this Court. This prayer was granted. On 24th January 1941, there was another adjournment up to 22nd March 1941. On 10th February 1941 Shiam Sunder made an application very much to the same effect. On 18th March 1941 another application was made by the plaintiffs for the consolidation of the two Misc. cases Nos. 75 and 76. Various adjournments, inconsequence of the presence of the record in this Court, were made till we come today, 13th September 1941. When the case was taken up on 13th September 1941 it was found that the record was still in this Court and the plaintiff was given an opportunity to furnish the information regarding the number and date of the application in revision. This was done and 6th December was the next date fixed. On 5th December 1941, however, the defendant applied that the case should be taken up. The case was taken on 6th December 1941. The order of 13th September 1941 must be reproduced in extenso:
Because the counsel for the applicant has not been able to tell the Court the number of the appeal (revision) pending in the High Court therefore it is ordered that the counsel should be informed that the case (No. 76) will be taken up on that date, 6th December 1941.
3. We find in the order-sheet the following entry on 6th December 1941:
The case was taken up to-day. The counsel for the parties are present. The statement of Raj Kumar (Bahadur) was recorded. On behalf of the applicant two papers were produced in support of his case. The counsel for the parties have been heard. Let a complaint against Shiam Sunder and Liaqat Husain under Section 193, Penal Code, be made to the District Magistrate and a copy of the judgment be placed on the record of Misc. Case No. 76 of 1940.
4. The offending statements against the applicant Shiam Sunder are these:
(a) In February 1933 Bhagwan Chand told me that his wife was not there and that the ruqqa was with her.
(b) When the payment of Rs. 450 was made in February 1933 Bhagwan Chand was present at the place of Dr. Murari Lal.
(c) Liaqat Husain was present.
The main attack was directed only against (a) and (b).
5. Additional evidence was admitted in the shape of a diary of Bhagwan Chand in order to prove that his marriage had taken place in 1935 and the statement attributed to Bhagwan Chand that the promissory' note was with his wife was, therefore, wrong. The second piece of additional evidence consisted of a letter of the Treasury Officer which showed that Dr. Murari Lal had died on 13th August 1932. This was filed to demolish the statement that Bhagwan Chand was present at the place of Dr. Murari Lal in February 1933. The learned Munsif, on a consideration of the materials as they existed before the admission of this additional evidence as also after its admission, came to the conclusion that a complaint should be made against Shiam Sunder and Liaqat Husain. On appeal, the learned Additional District Judge, in effect, affirmed the order of the learned Munsif although he found that the form of the learned Munsif's order did not meet with the requirements of law. He wound up his judgment in these terms:
I dismiss these two appeals on the merits but I notice that the Munsif has not made a proper complaint. He has merely said that the papers will be sent to the District Magistrate for prosecution of the two appellants. He should have a look at Section 193, Penal Code, and a formal complaint based on the model charge sheet which will be found in most commentaries on the Code, and give the actual words which form the basis of the complaint.
6. Shiam Sunder and Liaqat Husain have come before us in revision against this order. The first contention is that the applicant never had any proper opportunity to put forward his case, in other words he was not given proper hearing. We think that this contention is sound. A perusal of the order sheet makes it abundantly clear that the main purpose for which the hearing had been adjourned to 6th December 1941 was to ascertain whether the record had gone back from this Court. It is not surprising if the applicant was under the impression that the case could only come up after the receipt of the record by the learned Munsif. We, therefore, think that the applicants never had proper notice and were certainly taken unawares. It has been held in a number of cases that although the plain terms of Section 476, Criminal P.C., do not insist upon notice nevertheless it is highly desirable that such notice should be given: see Mohar Singh ('06) 28 All. 142, Ram Piari Rai v. Emperor ('12) 10 A.L.J. 247, Imam Ali v. Emperor ('24) 11 A.I.R. 1924 All. 435 and Mohamed M. Kaka v. District Judge, Bassein ('37) 24 A.I.R. 1937 Rang. 62. With the reception of additional evidence it became imperative upon the Court to give proper notice. We now turn to another aspect of the case. Even the additional evidence does not, in our opinion, conclusively prove that the statements in question were wrong. All that Shiam Sunder had said was that the payment of Rs. 450 was made in February 1933 at the house of Dr. Murari Lal. Murari Lal might have been dead or living but it is possible that his house might even after his death be called by his name. Coming now to the first statement that Bhagwan Chand had told him that his wife was not there and that the ruqqa was with her, his diary is a highly suspicious document. The complaint was filed on 8th August 1939. Krishna Prakash was described as a minor aged four. This means that he was born sometime in 1935. This evidence cuts across the evidence furnished by the diary. We, therefore, think that even the additional evidence did not conclusively demonstrate that the offending statements were wrong.
7. It has also been contended that on 7th August 1940, the applicant made an application withdrawing the plea of payment. This plea of withdrawal is, if anything, a factor in favour of the applicant. Even if he took a wrong plea in the written statement and made a wrong statement in the witness box he did not stick to it but corrected himself as soon as he found that the statement was wrong. Although the facts are somewhat different, the principle underlying the decision in Maharaj Prasad v. Emperor ('24) 11 A.I.R. 1924 All. 83 is in favour of the applicant. It has been contended that there has been enormous delay in the proceedings and that the applicant has been sufficiently punished by the suspense in which he has been all these years. This is also a factor in favour of the applicant. The Rangoon case supports this contention. Lastly it has been contended that there is no finding that the prosecution was 'expedient in the interests of justice.' This contention is founded on the language of Section 476, Criminal P.C., and is, we think, correct. Before a Court can start the machinery contemplated by this provision of the law against a private individual, he must be clearly told that his prosecution is in the interest of justice. Till this condition is fulfilled there can be no foundation for a proceeding of this character. On a consideration of all the facts, we have come to the conclusion that it is not a fit case in which a complaint should be filed against the applicants. In Jadu Nandan Singh v. Emperor ('10) 37 Cal. 250, it was held by a Bench of the Calcutta High Court that:
No sanction should be granted, or prosecution directed, unless there is a reasonable probability of conviction, though the authority granting a sanction under Section 195 or taking an action under Section 476 should not decide the question of guilt or innocence. Great care and caution are required before the criminal law is set in motion and there must be a reasonable foundation for the charge in respect of which a prosecution is sanctioned or directed.
8. We respectfully agree with the above observations and feel that the present case does not answer the test laid down by their Lordships. We, therefore, allow this application in revision, dismiss the application made on behalf of Vinay Prakash and Krishna Prakash dated 14th December 1940, and quash all proceedings up to this date pursuant to this application.