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K.S. Subramania Ayyar Vs. Swamikannu Chetty - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1933Mad413
AppellantK.S. Subramania Ayyar
RespondentSwamikannu Chetty
Cases Referred and Perianna Muthirian v. Vengu Ayyar
Excerpt:
.....and perianna muthirian v. on the merits of this case it is in my opinion clearly one in which no prosecution should be entertained except upon the complaint of the district munsif, vridhachalam......munsif on the ground that the claim was barred by limitation. (this appears from the order of the learned district judge; the records of the suit have not been discussed before me.)3. the sub-magistrate took the view that the offence alleged in the complaint was clearly one of intentionally fabricating false evidence for the purpose of being used in a judicial proceeding (section 193, i.p.c.) and that therefore a prosecution was barred by section 195(1)(b), criminal p.c., for want of a complaint by the district munsif in whose court the false document had been used. there can be no doubt that the person who wrote the false endorsement did so with the intention of causing it to appear that a payment of rs. 2 had been made on 15th march 1929. that would be an important item of evidence in.....
Judgment:
ORDER

Burn, J.

1. The petitioner was accused of an offence under Section 471, I.P.C., in a complaint presented by the respondent to the Subdivisional Magistrate, Chidambaram. The complaint was taken on file for offences under Sections 465 and 471, I.P.C., and transferred to the 2nd Class Magistrate of Vridhachalam for preliminary inquiry under Ch. 18, Criminal P.C. The Sub Magistrate recorded a sworn statement from the complainant and issued processes to the accused and witnesses, but before the inquiry could begin he was succeeded by another Magistrate, who heard preliminary arguments and held that the complaint was barred by Section 195, Criminal P.C., because there was no complaint by the District Munsif of Vridhachalam. The Magistrate then passed an order purporting to discharge the accused (the petitioner) under Section 209(2), Criminal P.C. In revision the learned Sessions Judge of South Arcot acting under Section 436, Criminal P.C., set aside the order of discharge and directed the Sub-Magistrate to restore the complaint to file and dispose of it according to law. The accused has prayed that the order of the learned Sessions Judge may be quashed as being contrary to law and without jurisdiction.

2. The facts, as alleged in the respondent's complaint are quite simple. Ramanuja Naidu of Melapapanampatti in Vridhachalam Taluk executed on 5th December 1927, a promissory note for Rs. 150, in favour of Kuppuswami Chetti of Melpadi. On 15th October 1930, Kuppuswami Chetty endorsed the promissory note in favour of the respondent. Until 15th October 1930, no endorsement of payment on account of principal or interest had been made on the promissory note and therefore the respondent's claim under it would become barred by limitation on 5th December 1930. On 19th November 1930, the respondent issued a notice to the promisor to which he received no reply. On 2nd December 1930 the respondent arranged with the petitioner, who is, or was then, a vakil's clerk for the filing of a suit on the promissory note in the Court of the District Munsif, Vridhachalam. He sent to the petitioner the promissory note, a vakalat form duly signed, and a blank sheet duly signed on which the plaint might be copied out; he sent also at the same time Rs. 24, for the fees and necessary expenses. The petitioner failed to see that the suit was filed within the period of limitation, but had it filed some time afterwards, and then the promissory note bore an endorsement of the payment of Rs. 2, on 15th March 1929. The respondent accused the petitioner of having somehow forged the endorsement in order to cover up his own offence, and stated that by filing the promissory note in the Court the petitioner had committed an offence under Section 471, I.P.C. The suit was dismissed by the District Munsif on the ground that the claim was barred by limitation. (This appears from the order of the learned District Judge; the records of the suit have not been discussed before me.)

3. The Sub-Magistrate took the view that the offence alleged in the complaint was clearly one of intentionally fabricating false evidence for the purpose of being used in a judicial proceeding (Section 193, I.P.C.) and that therefore a prosecution was barred by Section 195(1)(b), Criminal P.C., for want of a complaint by the District Munsif in whose Court the false document had been used. There can be no doubt that the person who wrote the false endorsement did so with the intention of causing it to appear that a payment of Rs. 2 had been made on 15th March 1929. That would be an important item of evidence in the suit, because if such a payment had been made, the bar of limitation would be removed. The respondent's contention, which appears to have found favour with the learned Sessions Judge is that the petitioner forged the endorsement not in order to make false evidence for the suit, but in order to cover up his own failure to file the suit in time. This contention is very obviously due to a confusion of motive with intention. No doubt the motive of the petitioner was to save himself from blame for delay in having the suit filed. But the intention of the act of forgery and the intention of the act of filing the forged document, have to be gathered from the acts themselves. The intention with which the forged endorsement was made was to cause it to appear that a payment of Rs. 2 had been made on 15th March 1929. The intention with which the forged document was filed in Court is equally clear; it was to make it appear to the District Munsif who was to try the suit that the claim was not barred by limitation. If the District Munsif believed that, and gave a decree for the plaintiff', the mistake of the respondent would be concealed and he would escape responsibility for the fees which had been entrusted to him. That however, though it may have been the ulterior object which the petitioner desired to gain, was not the intention with which he acted when he filed the promissory note in the Court.

4. The offence of fabricating false evidence for use in a judicial proceeding (Section 193, I.P.C.), is specified in Section 195(1)(b), Criminal P.C., and therefore no Court could take cognizance of that offence in this case without the complaint of the District Munsif, Chidambaram. The offence of using as genuine a forged document (Section 471, I.P.C.), is specified in Section 195(1)(c), Criminal P.C., and the petitioner not being a party or a witness to the suit, no complaint of the District Munsif is necessary before he could be prosecuted for that offence. The respondent has attempted to prosecute the petitioner for the offence under Section 471, I.P.C., although the facts alleged would constitute an offence under Section 193, I.P.C. This is precisely what is forbidden by the decisions in the cases of Ravanappa Reddi In re AIR 1932 Mad 253 and Perianna Muthirian v. Vengu Ayyar AIR 1929 Mad 21.

5. This is sufficient to show that the order of the learned Sessions Judge must beset aside and I do not think it is necessary to discuss the other decisions cited by the learned Sessions Judge. On the merits of this case it is in my opinion clearly one in which no prosecution should be entertained except upon the complaint of the District Munsif, Vridhachalam. I have no doubt whatever that the plaint in the suit upon the pro-note contained an averment of the payment of Rs. 2 on 15th March 1929. That averment was signed by the plaintiff (the respondent in this petition) and the learned District Munsif would want from him a full and satisfactory explanation thereof, before deciding at his instance to file a complaint against the present petitioner. The respondent, it is clear from his complaint, has foreseen this difficulty; hence the allegation in the complaint that he signed and delivered to the petitioner a blank sheet on which the plaint could be drafted. Under Order 6, Rule 15, Civil P.C., the respondent was bound to append a verification to his plaint, and, if he had applied to the District Munsif to prosecute the petitioner, he would have found that it was not so easy to escape from the implications of his verification by a mere assertion that he had signed on a blank sheet. This would have had an important bearing on the question whether the District Munsif would consider it expedient in the interests of justice to prosecute the petitioner. He might even have considered it necessary to prosecute the respondent also.

6. There is another technical point to which Mr. K.S. Jayarama Iyer for the petitioner has called my attention though it has not been fully argued, since it was not mentioned in the petition. The learned Sub-Magistrate has stated in his order that he discharged the petitioner under Section 209(2), Criminal P.C. He had decided that he had no jurisdiction to entertain the complaint, but strangely enough it did not occur to him that if he had no jurisdiction to entertain the complaint he could certainly have no jurisdiction to discharge the accused under Section 209(2), Criminal P.C. Moreover an order of discharge under Section 209(2), Criminal P.C., must be based on a consideration that the charge is groundless. There is nothing in this case upon which the Magistrate could have arrived at such a decision; nor in fact has he arrived at such a decision. The Magistrate's order that he declined to proceed with the case for want of jurisdiction was not an order that could be revised by the learned Sessions Judge. Though the Magistrate used the word 'discharge' his order was not in law an order of discharge at all, and the mere mention in it of Section 209(2), Criminal P.C., could not give the learned Sessions Judge jurisdiction to deal with it under Section 436, Criminal P.C. Nor was it an order dismissing a complaint under Section 203, Criminal P.C., for, such an order can only be passed by a Magistrate having jurisdiction to take cognizance of the complaint. The order of the learned Sessions Judge directing further inquiry into the complaint against the petitioner is accordingly set aside.


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