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In Re: Chilukuri Antarvedi Sarma and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtChennai
Decided On
Reported inAIR1946Mad489; (1946)1MLJ466
AppellantIn Re: Chilukuri Antarvedi Sarma and ors.
Cases ReferredMallappa Goundan v. Chinnammal
Excerpt:
- - the fact set out, however, clearly disclose that it was intended, if necessary, to use the document in a judicial proceeding even if it was hoped that the existence of the document would force the complainant to come to terms regarding his occupancy rights without resort to the courts......jurisdiction to take cognizance of an offence punishable under sections 467 and 109 of the indian penal code. a promissory note was brought into existence on the 12th september, 1943, for the principal sum of rs. 450 which purported to be executed by the complainant in favour of the second accused. it was written by the first accused and attested by the third accused. this promissory note was assigned to the fourth accused and he issued a registered notice to the complainant demanding the amount due under the promissory note and 'on the complainant denying that he had executed the promissory note, filed s.c. no. 15 of 1944, on the file of the subordinate judge's court, tenali, on the footing of the promissory note. the promissory note was sent to the government hand-writing expert who.....
Judgment:
ORDER

Happell, J.

1. This is a petition to revise an order of the Stationary Sub-Magistrate, Tenali, made in P.R.C. No. 11 of 1944, overruling objections to his jurisdiction to take cognizance of an offence punishable under Sections 467 and 109 of the Indian Penal Code. A promissory note was brought into existence on the 12th September, 1943, for the principal sum of Rs. 450 which purported to be executed by the complainant in favour of the second accused. It was written by the first accused and attested by the third accused. This promissory note was assigned to the fourth accused and he issued a registered notice to the complainant demanding the amount due under the promissory note and 'on the complainant denying that he had executed the promissory note, filed S.C. No. 15 of 1944, on the file of the Subordinate Judge's Court, Tenali, on the footing of the promissory note. The promissory note was sent to the Government Hand-writing Expert who gave the opinion that the finger-print on the promissory note was not that of the complainant. On that, the fourth accused had the suit dismissed. The complaint now in question was based on the above facts and it was dismissed as against the fourth accused under Section 203 of the Criminal Procedure Code on the ground that the complaint against him could only be given by the Subordinate Judge's Court, Tenali. With regard to the other accused, it was argued on their behalf that the complaint disclosed offences under Sections 193 and 471 of the Indian Penal Code, so that the case fell within the provisions of Section 195 (b) of the Criminal Procedure Code, even though the allegations also disclosed an offence under Section 467 which is. not mentioned in Section 195. The Sub-Magistrate overruled the objections on the ground that offences under Sections 193 and 471, Indian Penal Code, are minor offences as compared with Section 467, relying on a decision of Lakshmana Rao, J., in Gumswami Chettiar v. Emperor : AIR1941Mad323 .

2. The learned Magistrate has not referred to two decisions of Benches of this Court. Ravanappa Reddi, In re (1931) 62 M.L.J. 735 : I.L.R. 55 Mad. 343 and In re Appadorai Nainar : (1935)69MLJ812 , without reference to which the decision in Giiruswami Chettiar v. Emperor : AIR1941Mad323 cannot be understood. In these I two cases it was held that if the facts disclosed an offence under Section 193, Indian I Penal Code, parties could not be allowed to evade the provisions of Section 195(1)(b) of the Code of Criminal Procedure by filing a complaint under another provision of the Indian Penal Code. In Guruswami Chettiar v. Emperor : AIR1941Mad323 , Lakshmana Rao, J., referred to but distinguished Appadorai Nainar, In re : (1935)69MLJ812 , on the ground that in the case before him there was no question of evading the provisions of Section 195 of the Code of Criminal Procedure. The facts of the case were that a pleader had used a forged receipt in the course of proceedings against him under the Legal Practitioners Act. The Court thereafter was moved to make a complaint against the pleader for an offence under Section 403 and against the maker and the two attestors of the receipt for an offence under Section 467, Indian Penal Code. For reasons that are not material the Court did not think it necessary to make a complaint against the pleader and, as regards the other three respondents, it was also of opinion that a complaint need not be made because they could he prosecuted for an offence under Section 467, Indian Penal Code, without a complaint from the Court and the offence under Section 193 which could also be said to have been committed did not require a complaint because as compared with the offence under Section 467 it was a minor offence. This decision, as already indicated, was upheld in revision by Lakshmana Rao, J.

3. In the present case the aggrieved party filed a petition in the Civil Court asking that Court to make a complaint against the four accused and also himself filed a complaint in a Criminal Court. Orders on the petition in the Civil Court do not yet seem to have been passed. In the complaint to the Criminal Court it is true that the object of the forgery is stated to be to force the complainant to come to terms by fabricating documents and again at the end of the complaint to be ' to coerce the complainant to part with property.' It is not stated in so many words that the object was to use the forged promissory note in any stage of a judicial proceeding. The fact set out, however, clearly disclose that it was intended, if necessary, to use the document in a judicial proceeding even if it was hoped that the existence of the document would force the complainant to come to terms regarding his occupancy rights without resort to the Courts. I am unable to distinguish the facts of the present case from the facts in Ravanappa Reddi, In re (1931) 62 M.L.J. 735 : I.L.R. 55 Mad. 343 and In re Appadorai Nainar : (1935)69MLJ812 . It is suggested that there is no evasion because the complainant has asked the Civil Court to make a complaint. But it is just here, I think, that there is a distinction between the present case and the case decided by Lakshmana Rao, J. The complainant in the case with which he was concerned asked the Civil Court to make a complaint and was referred to a Criminal Court. There was certainly no question of evasion. But it is not open to the complainant to say that there can be no question of evasion simply because he has also asked the Civil Court to make a complaint. The Civil Court might dismiss the application not because it thought that no complaint was required from it but because it did not think it expedient in the interests of justice to make a complaint and in such circumstances it would certainly be an evasion of the provisions of Section 195 simultaneously to press a complaint in a Criminal Court in respect of the same facts.

4. I have been referred on behalf of the complainant to two cases, one decided by King, J., In re Muthuvelu Kudumban : (1936)71MLJ485 and the other by the learned Chief Justice and Chandrasekhara Aiyar, J., in Nallappa Goundan v. Chinnammal : AIR1942Mad19 . These cases cannot help the complainant. In the first of them, Ravanappa, In re (1931) 62 M.L.J. 735 : I.L.R. 55 Mad. 343, was distinguished and in the second In re Appadorai Nainar : (1935)69MLJ812 . In re Muthuvelu Kudumban : (1936)71MLJ485 , King, J., held that a Criminal Court was not debarred from taking cognizance of an offence under Section 211, Indian Penal Code, simply because the facts also disclosed a minor offence under Section 182, Indian Penal Code, in respect of which a special complaint was necessary. But the basis of his decision was that if all the facts were considered the appropriate section of the Indian Penal Code which applied to the offence was Section 211. There was thus no question of evading Section 195 as in Ravanappa Reddi, In re (1931) 62 M.L.J. 735 : I.L.R. 55 Mad. 343, by ignoring the elements of the offence which brought it under Section 193 and confining attention to the elements which brought it under Section 467 in respect of which no special complaint was necessary. In the present case it is clear that the Magistrate can only try the case as a case under Section 467, Indian Penal Code, by ignoring the elements which also bring the case under Section 193, Indian Penal Code. In Nallappa Goundan v. Chinnammal : AIR1942Mad19 , it was held that a complaint of defamation could be taken cognizance of by a Criminal Court even though the alleged defamatory words were contained in a deposition given in a Civil Court. But here again the case is no authority for the view that a complainant, as in the present case, can ignore the offence committed under Section 193 and ask the Criminal Court to take cognizance of the charge under Section 467 alone. It was pointed out in Mallappa Goundan v. Chinnammal : AIR1942Mad19 that the offence of defamation was entirely different from the offence of perjury and In re Appadorai Nainar : (1935)69MLJ812 was distinguished on the ground that, as in the present case, it was based on a forged instrument which had been given in evidence and which was not in the same category as a charge of defamation which is an entirely personal matter.

5. For the reasons given I am of opinion that the present case is governed by the decisions in Ravanappa Reddi, In re (1931) 62 M.L.J. 735 : I.L.R. 55 Mad. 343 and In re Appadorai Nainar : (1935)69MLJ812 . That being so, the Magistrate had no jurisdiction to take cognizance of the complaint. His order is, therefore, set aside; the complaint is dismissed and this petition is allowed.


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