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K.S. Doraiswami Nadar Vs. Sivanupandia Nadar - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1944Mad181; (1943)2MLJ668
AppellantK.S. Doraiswami Nadar
RespondentSivanupandia Nadar
Cases Referred and Kayarohana Chettiar v. Nagalinga Chettiar
Excerpt:
- - the order under appeal is a judgrnent within the meaning of the clause and is clearly appealable, unless it can be said to have been passed in the exercise of revisional or criminal:.....leach, c.j.1. this is an appeal from an order passed by horwill, j., under section 476 of the criminal procedure code, directing that a complaint be filed against the appellant, charging him with having committed an offence under section 471, indian penal code.2. the appellant was the organiser of a chit fund and the respondent was a subscriber. the respondent filed a suit in the court of the subordinate judge of tinnevelly to recover from the appellant the sum of rs. 850, with interest amounting to rs. 88-8-8, which he alleged was due to him by the appellant in respect of subscriptions paid to the chit fund. it was a small cause suit. the defence was that all moneys due to the respondent had been repaid. on the 4th february, 1939, there was, it was said, due to the plaintiff on.....
Judgment:

Alfred Henry Lionel Leach, C.J.

1. This is an appeal from an order passed by Horwill, J., under Section 476 of the Criminal Procedure Code, directing that a complaint be filed against the appellant, charging him with having committed an offence under Section 471, Indian Penal Code.

2. The appellant was the organiser of a chit fund and the respondent was a subscriber. The respondent filed a suit in the Court of the Subordinate Judge of Tinnevelly to recover from the appellant the sum of Rs. 850, with interest amounting to Rs. 88-8-8, which he alleged was due to him by the appellant in respect of subscriptions paid to the chit fund. It was a small cause suit. The defence was that all moneys due to the respondent had been repaid. On the 4th February, 1939, there was, it was said, due to the plaintiff on balance the sum of Rs. 467-1-4. Of this, Rs. 17-1-4, was remitted and Rs. 130 was adjusted against a promissory note alleged to have been executed by the respondent and another in favour of the appellant. This left Rs. 320 which the appellant paid over to the respondent, who granted him a receipt for the amount. The Subordinate Judge accepted the evidence adduced by the appellant and dismissed the suit. The respondent alleged that the promissory note and the receipt were forgeries, but after consideration of the evidence the Subordinate Judge held that they were genuine documents.

3. Against the decree dismissing the suit, the respondent filed an application for revision under Section 25 of the Provincial Small Cause Courts Act, 1887. The petition was heard by Horwill, J., who took a different view of the evidence with regard to the receipt. He accepted the finding of the Subordinate Judge that the promissory note was genuine, but he considered that the receipt had been forged. As the result he passed a decree in favour of the respondent for Rs. 320 with interest. Subsequently the respondent applied for an order directing the appellant's prosecution under Section 476, Criminal Procedure Code, and his application was granted. Hence this appeal.

4. Earned Counsel for the respondent has contended that an appeal does not lie from the order of Horwill, J. directing the lodging of a complaint and it is necessary to deal with this matter first. Section 476-B, Criminal Procedure Code, permits a person against whom an order has been made under Section 476, Criminal Procedure Code, to appeal to the Court to which the Court ordering the lodging of the complaint is subordinate within the meaning of Sub-section (3) of Section 195. This sub-section says inter alia that for the purposes of the section a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from appealable decrees. The question is whether Horwill, J., constituted a Court subordinate to a Division Bench of the Court, and we consider that he did.

5. Clause 15 of the Letters Patent provides that an appeal shall lie from the judgment of one Judge of the Court to a Division Bench unless the judgment is one passed in second appeal and no certificate has been granted declaring the case to be a fit one for appeal, or unless it has been passed in the exercise of revisional jurisdiction or in the exercise of criminal jurisdiction. The order under appeal is a judgrnent within the meaning of the clause and is clearly appealable, unless it can be said to have been passed in the exercise of revisional or criminal: jurisdiction. It was not passed in the exercise of revisional jurisdiction. It was passed on an application made to the Court under Section 4.76, Criminal Procedure Code. This has not been seriously contested, but Mr. A. Swaminatha Aiyar has argued that it was passed in the exercise of criminal jurisdiction. In view of the decision of the Full Bench of this Court in Kumaravel v. Shanmuga : AIR1940Mad465 , this argument cannot be accepted. In that case it was held that a Civil Court does not cease to be a Civil Court when it is considering an application made to it under Section 476, Criminal Procedure Code, and the Civil Procedure Code: governs the application. In the course of his argument, Mr. Swaminatha Aiyar stressed certain observations of Schwabe, C.J., in Muniswami Mudaliar v. Rajaratnam Pillai : (1922)43MLJ375 . Schwabe, C.J., did appear to be inclined to the opinion that a Court dealing with such a matter is exercising criminal jurisdiction; but he expressly stated that he was not deciding the question and he had not heard the other side. Coutts-Trotter, J., who was a member of the Full Bench which decided that case, said that he did not wish to be taken as expressing any opinion on this question. The remarks of Schwabe, C.J., are not binding on us and certainly cannot be followed in view of the decision in Kurmaravel v. Shanmuga : AIR1940Mad465 , with which we respectfully agree. The decision in Muniswami Mudaliar v. Rajaratnam Pillai : (1922)43MLJ375 has, however, some bearing on the present case. There sanction to prosecute a plaintiff was granted by a learned Judge sitting on the Original Side of the Court, and an appeal was filed against his order. The question was whether a Judge sitting on the Original Side constituted a Subordinate Court within the meaning of Section 195 of the Criminal Procedure Code and it was held that he was. The appeal was allowed and the sanction for prosecution revoked.

6. Before clause 15 of the Letters Patent was amended by an Order in Council dated the 3rd November, 1927, appeals from judgments passed by Judges sitting alone were allowed in all cases, including an order passed under Section 25 of the Provincial Small Cause Courts Act: see Venkata Reddi v. Taylor (1893) 3 M.L.J. 259 : I.L.R. Mad. 100. As the result of the amendment, appeals from the judgments of Judges sitting alone are not allowed in certain specified cases, but this case is not one of them. Therefore an appeal does lie and Horwill, J., constituted a subordinate Court within the meaning of Section 195(3) Criminal Procedure Code. The preliminary objection must be overruled.

7. Turning now to the merits of the appeal, the learned Judge misconceived the powers given to him by Section 25 of the Provincial Small Cause Courts Act. That section says that the High Court, for the purpose of satisfying itself that a decree or order made in a case decided by a Court of Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit. This does not mean, however, that the High Court can constitute itself a Court of appeal in such cases. It has no right to reverse the trial Court on questions of fact, unless the trial Court has given a perverse judgment or has overlooked essential evidence in the case: see In re Ganapathi Pillai 1912 M.W.N. 181 and Kayarohana Chettiar v. Nagalinga Chettiar (1915) M.W.N. 533. this Court has read the section as allowing a right of interference when there has been an erroneous decision in law, and has perhaps in this respect gone further than some High Courts; but it has not interpreted the section as allowing the Court to review evidence as a Court of appeal. Horwill, J., viewed the evidence as a Court of appeal. He came to the conclusion that the receipt for R.s. 320 was a forgery as the result of his own examination of the document and testimony of the handwriting expert of the Central Provinces and Bihar. We are not prepared to say from an examination of the document that it is a forgery. The Subordinate Judge examined the document. He had regard to the evidence of the witnesses who spoke in support of its genuineness and he considered the evidence of the handwriting expert. After consideration of all the evidence on the record he came to the conclusion that it was a genuine document. In these circumstances the learned Judge who heard the petition for revision had no right to interfere with the decision of the Subordinate Judge and consequently he erred in expressing the opinion that the document had been fabricated. In these circumstances, he should not have passed an order under Section 476, Criminal Procedure Code. The appeal must be allowed and the order of the learned Judge cancelled.


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