1. The Lower Court has, acting under Section 476, Criminal Procedure Code, made a report against petitioner for an offence under Section 209, I.P.C. fraudulently making in a Court of Justice a claim which he knew to be false. The lower Court was of opinion that petitioner sued to recover money on a mortgage already fully discharged, knowing that it had been discharged.
2. The first point taken for petitioner is that the lower court had no legal evidence on which to base its order and that the evidence on which it is based was recorded improperly and contrary to law. The petitioner, as plaintiff in the mortgage suit, did not appear on 12th December 1921, the date to which the suit had been adjoarned for trial, and the lower court proceeded nevertheless to file documents both for the plaintiff and the defendant and to examine the defendant's witnesses, the important part of the defence case being the production and proof of a receipt. I x. I, purporting to be in full discharge of the mortgage and said to have been written by petitioner himself. Undoubtedly the babis of the lower court's opinion that petitioner committed an offence under Section 209 I.P.C. is this Ex.I.
3. Petitioner contends that Ex, I is more than a receipt and evidences a settlement of the mortgage and is not registered and therefore inadmissible in evidence. As Ex. I is not produced here, I am unable to decide whether that is a good point or not.
4. The next point is that the lower court ought when petitioner did not appear in his suit, simply to have dismissed his suit and was not entitled in law to take evidence in the suit. Order XVII Rule 2, read with OrderIX Rule 8, of the Code of Civil Procedure uphold that contention. However that may be, I do not see anything which prevented the lower court from taking the evidence in order to satisfy itself whether or not it was a fit case for taking action under Section 476, Criminal procedure Code and I am not therefore prepared to hold that the evidence was improperly or illegally taken for that purpose, which is the purpose for which the lower Court has used it.
5. Petitioner then contends that it was not open to the lower court to initiate proceedings under Section 476. Criminal procedure Code, while the civil suit was undisposed of. I can see no force in that contention, nor any reason why a court, when any of the offences noted in Section 195, Criminal Procedure Code, is committed before it in a civil suit, should delay proceedings under Section 476, Criminal Procedure Code, until the suit is disposed of, which disposal may not occur until months or years later. The Full Bench ruling in Aiyakannu Pillai v. Emperor (1910) 9 MLT 191 which is the leading case on the matter of court's taking prompt action under Section 476, distinctly lays down that such action may be taken 'in the course of the Judicial proceeding' in which the alleged offence has occurred.
6. The final and in my view, the most important point taken by petitioner is that he was given no notice of the lower court's intention to take action against him. Now such notice is not, as a matter of law, necessary, but in a case like the present where the prosecution has been ordered on evidence by witnesses whom petitioner had no opportunity to cross examine and whose evidence has thus not been tested, I am of opinion that it was a materially irregular exercise of the lower court's jurisdiction to direct such a serious step as a criminal prosecution in this matter without giving petitioner any chance to know and meet the case against him. The case is similar to that reported in In re Kolli Appiah in which the order under Section 476 was set aside.
7. I think the proper order in this case is to set aside the lower Court's order and direct it to rehear the matter of passing an order under Section 476 Criminal Procedure Code, after giving petitioner an opportunity of cross-examining the witnesses and meeting the case against him, and I hereby order accordingly.