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A. Pafeeq Ahmed Sahib Vs. Istiaq Ahmed - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai High Court
Decided On
Judge
Reported in1975CriLJ1470
AppellantA. Pafeeq Ahmed Sahib
Respondentistiaq Ahmed
Cases ReferredVidya Devi v. Firm Madanlal
Excerpt:
.....for exclusion expressly made, a registrar or a sub-registrar under the indian registration act, would legitimately be considered to have been included in the term 'court'.in view of the legislative intention clearly expressed in the sub-section there is every reason to include the rent controller and the appellate authority within the definition of the term 'court';as given in section 195 (2), criminal procedure code as these tribunals have far greater trappings of a court than a registrar or a sub-registrar under the indian registration act......this was put to the respondent when he was in the witness-box in the proceedings before the rent controller. the learned rent controller held that ex. p-10 is a genuine document executed by the respondent and this document established clearly that the respondent was in huge arrears of rent and that, therefore, he was liable to be evicted. with this finding, he ordered eviction. this was on 24-9-1970. the respondent tenant preferred an appeal to the appellate authority (iv judge, small cause court, madras). the appellate authority set aside the order of eviction and observed that ex. p-10 cannot be taken as a genuine document. this was on 15-9-1971. the present complaint was filed by the respondent on 30-3-1973, nearly 1 1/2 years after the judgment of the appellate authority. on.....
Judgment:
ORDER

Somasundaram, J.

1. This is an application for quashing the proceedings pending against the petitioner in C. C. No. 5606 of 1973, in the court of the VIII Presidency Magistrate, G. T. Madras. That case is a case for the alleged offences of forgery and making use of a forged document in certain rent control proceedings and the respondent herein (tenant) is the complainant therein. His case is that on 7-3-1968, the petitioner-landlord obtained his signature in a blank sheet of paper, that subsequently he brought into existence the recitals in that sheet to show as though the respondent was in arrears of rent to the tune of Rs. 1563.77 and subsequently made use of this document In the proceedings for eviction. The petitioner contends that Section 195 (1), Criminal Procedure Code is a bar for the present proceedings because the document in question, even according to the respondent, was used in proceedings in court and that it is that court which should come forward with a complaint for offences of forgery etc.

2. Therefore, the short point for determination is, whether the proceedings are sustainable without a complaint by Court as contemplated by Section 195 (1), Criminal Procedure Code.

3. Ex. P-10 is the letter. The respondent admits his signature in it. He contends that the petitioner-landlord obtained his signature in a blank sheet stating that it was for getting an acknowledgement of the arrears of electricity charges. This document recites that the respondent was in arrears of rent to the tune of Rs. 1563.77. This was put to the respondent when he was in the witness-box in the proceedings before the Rent Controller. The learned Rent Controller held that Ex. P-10 is a genuine document executed by the respondent and this document established clearly that the respondent was in huge arrears of rent and that, therefore, he was liable to be evicted. With this finding, he ordered eviction. This was on 24-9-1970. The respondent tenant preferred an appeal to the appellate authority (IV Judge, Small Cause Court, Madras). The appellate authority set aside the order of eviction and observed that Ex. P-10 cannot be taken as a genuine document. This was on 15-9-1971. The present complaint was filed by the respondent on 30-3-1973, nearly 1 1/2 years after the judgment of the appellate authority. On the question as to whether Ex. P-10 is a forged document or a genuine one, except the evidence of the complainant and the respondent, there is no other evidence in the case to show either way. It is a case of oath against oath. The Rent Controller has held that Ex. P-10 is a genuine document and the appellate authority has held that it is otherwise. Whether in such circumstances, the complainant could satisfactorily prove his case of forgery beyond doubt is itself doubtful matter. But this is a question germane to the issues now arising for consideration in this case. The fact remains that the respondent-complainant had come forward with the present complaint of forgery 1 1/2 years after the finding given by the appellate Court. The fact that he delayed for such a long time is yet another circumstance, which will have to be taken into account for assessing the genuineness or otherwise of the document Ex. P-10. We are not concerned at this stage with that aspect of the matter also.

4. The learned Counsel appearing for the respondent relies on the decision in Patel Laljibhai v. State of Gujarat : 1971CriLJ1437 and contends that a complaint by court under Section 195 (1), Cri. P. C. is not necessary because this document Ex. P-10 came into existence much prior to the initiation of the proceedings by the landlord in court. In the decision cited above, it was held-

The offences about which the court alone, to the exclusion of the aggrieved private parties is clothed with the right to complain may, therefore, be appropriately considered to be only those offences committed by a party to a proceeding in that court, the commission of which has a reasonably close nexus with the proceedings in that court so that it can, without embarking upon a completely independent and fresh inquiry satisfactorily consider by reference principally to its records the expediency of prosecuting the delinquent party.

The purpose and object of the Legislature in creating the bar against cognisance of private complaints in regard to the offences mentioned in Section 195 (1) (b) and (c) is both to save the accused person from vaxatious or baseless prosecutions spitted by feelings of vindictive-ness on the part of the private complainants to harass their opponents and also to avoid confusion which is likely to arise on account of conflicts between findings of the courts in which forged documents are produced or false evidence is led and the conclusions of the criminal courts dealing with the private complaint. It is for this reason that the Legislature has entrusted the court whose proceedings had been the target of the offence of perjury to consider the expediency in the larger public interest of a criminal trial of the guilty party.

This bar would apply only in respect of documents forged subsequent to the initiation of proceedings in any court. If the document was forged much prior to the initiation of proceedings, it will be an offence under Section 467, Indian Penal Code and this can be tried in the absence of a complaint by the court unless it is shown by evidence that the document was forged by a party to the earlier proceedings in his character as such party, in other words after the suit had been instituted.

5. The respondent in paragraph 3 of his grounds of appeal filed by him in the appellate court in the rent control matter averred that this document Ex. P-10 was prepared at a later stage by the petitioner or by some one interested in him, that is, after the initiation of the eviction proceedings, long after 9-8-1968. Thus, his version is that Ex. P-10 did not come into existence on the date, which it bears, but on a date subsequent to 9-8-1968, that is, during the pendency of the eviction proceedings. When that is the case, the decision in : 1971CriLJ1437 , will not apply. It follows that the complaint by the court is necessary as contended by the petitioner.

6. The learned Counsel for the respondent contends that the Rent Controller is not a court and as such Section 195 (1), Criminal Procedure Code cannot come into operation and for this position he relies upon the decision in Sankar v. Buvanambal Animal : AIR1971Mad368 . In that case, there was no appointment of the Additional District Munsif as a controller. The case was transferred by the Principal District Munsif. who alone was appointed as such, to the file of the Additional District Munsif, as per the directions of the High Court. The latter alone was invested with the powers of a Controller. Under Section 2 (3) of the Madras Buildings (Lease and Rent Control) Act, 'Controller' is defined as a person appointed to perform the function of a Controller under the Act. In that case, it was contended that under Section 4 (a) of the Civil Courts Act, where the court of the District Munsif has been entrusted with powers under the provisions of that Act, or any other Act, those powers could be exercised also by the Additional District Munsifs. The Bench held that the simple answer to this is that the Controller is not a court and the investiture of power under Section 2 (3) of the Act is persona designata. that is to say, the Principal or any other District Munsif named specifically, and not on the court, as such, of the. District Munsif, and that when the investiture by the notification is specifically on the Principal District Munsif, it cannot be said that because in other respects the Additional District Munsif has the same powers as the District Munsif, the former could also function as a Controller. The Bench further observed in paragraph 5 as below-

It is true that the Additional District Munsif will have, as a court, the same powers as the District Munsif. But by equation of the powers there can be no identification of the offices they hold.

This is all that the Bench has said in the above decision. Clause 2 of Section 195, Criminal Procedure Code states the term 'Court' in Clauses (b) and (c) of Sub-section (1) includes a civil, revenue or criminal court, but does not include a Registrar or Sub-Registrar under the Indian Registration Act. The court as per Section 3 of the Indian Evidence Act includes all Judges and Magistrates and all persons except arbitrators legally authorised to take evidence. In the State v. Bhagbati Prasad ILR (1951) Cal 182, it has been held that the Rent Controller, who receives evidence for the purpose of deciding an application for standardisation of rent, is a court within the meaning of Section 195, Criminal Procedure Code, whether or not he is a court when he decides only on personal enquiry. It was further held that a complaint by a Rent Controller is necessary before a person can be prosecuted under Section 471, Indian Penal Code for using as genuine a forged receipt in a proceeding for standardisation of rent before him when he received evidence to decide the matter. The decision in Vidya Devi v. Firm Madanlal . points out that, what distinguishes a court from a quasi-judicial tribunal is that it is charged with a duty to decide disputes in a judicial manner and declare the rights of parties in a definitive judgment. It was held that to decide in a judicial manner involves that the parties are entitled as a matter of right to be heard in support of their claim and to adduce evidence in proof of it, and that when a question arises as to whether an authority created by an Act is a court as distinguished from a quasi-judicial tribunal, what has to be decided is whether having regard to the provisions of the Act it possesses all the attributes of a court. Section 195 (2) specifically excludes a Registrar or Sub-Registrar under the Indian Registration Act from the purview of Court. It is, thus, evident from the language of this Sub-section that but for exclusion expressly made, a Registrar or a Sub-Registrar under the Indian Registration Act, would legitimately be considered to have been included in the term 'court'. In view of the Legislative intention clearly expressed in the Sub-section there is every reason to include the Rent Controller and the appellate authority within the definition of the term 'court'; as given in Section 195 (2), Criminal Procedure Code as these tribunals have far greater trappings of a court than a Registrar or a Sub-Registrar under the Indian Registration Act. Thus. Section 195 (1), Criminal Procedure Code is a bar to the present proceedings. There must be a complaint by the Court. The present proceedings are therefore, quashed. The respondent will be at liberty to move the concerned court under Section 195 (1), Criminal Procedure Code.

7. The criminal miscellaneous petition is allowed.


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