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In Re: Karathammathintakath Kunhamad - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1942Mad753
AppellantIn Re: Karathammathintakath Kunhamad
Cases ReferredEmpress v. Chenchi Reddi
- .....under section 476b, criminal p.c., to the district judge, who came to the conclusion that the learned district munsif was justified in filing a complaint and dismissed the appeal. now the same matter has come before the same judge as the sessions judge of north malabar; and a preliminary objection has been taken to the legality of the proceedings in the sessions court on the ground that the sessions judge was precluded by section 556, criminal p.c., from trying this case.2. if the district judge had himself filed this complaint, ho would have been directly hit by section 556, criminal p.c. and he would have had no jurisdiction to try this case. the questions of prejudice to and tho effect of the consent of the accused would not have arisen at all, because he would have had no.....

Horwill, J.

1. The appellant has been convicted by the Sessions Judge of North Malabar of offerices punishable under Sections 193, 467 read with Section 109 and 471 read with Section 467, Penal Code and has been sentenced to one year's rigorous imprisonment on each count, the sentences to run concurrently. P.W. 3 filed two suits for arrears of rent against the accused for the Malayalam year 1114 and for a part of the rent due for the year 1113. The accused then produced Ex. C, which purports to be a receipt for the balance of rent due for the year 1113 and during the course of the trial he paid the rent due for the year 1114. The District Munsif who tried the suits came to the conclusion that Ex. C was a forgery. He therefore issued notice to the accused and inquired into the matter; and he came to the conclusion for reasons expressed by him that a complaint ought to be laid against the accused for forgery and other kindred offences. He therefore laid a complaint. His order was carried in appeal under Section 476B, Criminal P.C., to the District Judge, who came to the conclusion that the learned District Munsif was justified in filing a complaint and dismissed the appeal. Now the same matter has come before the same Judge as the Sessions Judge of North Malabar; and a preliminary objection has been taken to the legality of the proceedings in the Sessions Court on the ground that the Sessions Judge was precluded by Section 556, Criminal P.C., from trying this case.

2. If the District Judge had himself filed this complaint, ho would have been directly hit by Section 556, Criminal P.C. and he would have had no jurisdiction to try this case. The questions of prejudice to and tho effect of the consent of the accused would not have arisen at all, because he would have had no jurisdiction to try the case. The same result I would have followed if the District Munsif had declined to lay a complaint and the District Judge, by virtue of the authority given to him by Section 476B, bad ordered the District Munsif to lay the complaint. The maxim qui facit per alium facit per se would then apply and even though the District Munsif had laid the complaint, he would have done so as the agent of the District Judge; and it could then have been said that the District Judge was a party in the case. A very different question arises however, when the District Judge merely considers, on appeal from the order of the District Munsif directing the filing of a complaint, whether a prima facie case has been made out and then dismisses the appeal. There, the Judge cannot be said to have been a party to the proceedings; and so the only question that would arise in such a case would be whether he could be said to be personally interested. It is difficult to see how he could be interested in the result. It was not he who laid the complaint. In a purely judicial capacity he had to consider whether the District Munsif was right in finding that a prima facie case had been made out. A Court has often to consider twice the same set of facts and it does not necessarily follow that because it has passed an order on the matter at a prior stage, it is precluded from considering the matter at a later stage. In a revision application, for example, a Judge of the High Court may find that there is no cause for interference with the course of a trial; but that would not preclude him from hearing an appeal if the case subsequently ended in a conviction and an appeal was preferred. In the same way a Judge often considers the facts of a criminal case in a bail application either in particular proceedings which are before him or in the proceedings of subordinate Courts which ultimately end in a conviction and come before him in appeal. I find it difficult to believe that the Sessions Judge was in any way biased as a result of his previous deliberations; still less can it be said that he was interested.

3. A number of cases have been referred to by the learned counsel for the appellant and by the learned public prosecutor; but not one of those discussed resembles the present case at all closely. Lakshmana Rao J. in In re Ponnusami Pillai A.I.R.1940 Mad. 945 set aside an appellate order because the Joint Magistrate who heard the appeal had laid the complaint; but no facts are set out in that judgment and we do not know what were the considerations which led the learned Judge to pass the order. If this matter had come before me in a transfer application, then I would, undoubtedly, have ordered a transfer; because the fact that the Judge who heard the appeal from the order that a complaint should be made was to try the case itself, might cause a reasonable apprehension in the mind of the accused that he might not secure a fair trial. Such a case arose in Kottamiddi Ranga Reddi v. Emperor 1934 M.W.N. 862, when Pandrang Row J. ordered the case to be transferred to some other Sessions Judge. But the very fact that the accused here did not file an application for transfer in this Court, did not ask the Sessions Judge to apply to this Court to have the matter transferred and did not even object to the trial by this Judge, shows that the accused had in fact no apprehension that he would not receive justice at the hands of Mr. Sivaramakrishnan. Most of the cases quoted on behalf of the learned Public Prosecutor do not help us very much, because they were cases in which it was quite obvious that the Magistrates were not interested. They were responsible for the general administration of subjects connected with the matter under inquiry; but they had nothing to do with the inquiries in those particular cases. In Queen-Empress v. Chenchi Reddi (1901) 24 Mad. 238, however, two learned Judges of this Court held that a Deputy Magistrate, who after considering certain allegations against a person, ordered the Tahsildar to prosecute him on such charges as could be proved in a criminal Court, was not precluded from hearing an appeal against conviction, because he was not personally interested in the matter within the meaning of Section 556, Criminal P.C. In Sudhama Upadhya v. Queen-Empress (1896) 23 Cal. 328 the Magistrate had initiated some of the police inquiries and played an important part in the investigation, intervening in it at various stages. It was held that he was an interested party and therefore had no jurisdiction to try the case.

4. In Emperor v. Bisheshar (1909) 32 All. 635 the president of the Octroi Sub-Committee of a Municipal Board expressed an opinion on the material before him and ordered his secretary to prosecute. He afterwards tried that case and, it was held that as he had already considered the facts and had ordered his secretary to make a complaint, he was personally interested. In In re Mudkaya Andanaya Herimath : AIR1927Bom35 the Sessions Judge, in disposing of a sessions case, came to the conclusion that certain offences had been committed by some of the prosecution witnesses and he therefore ordered their prosecution. The Magistrate who tried the accused for the offences which were the subject of the complaint of the Sessions Judge discharged two of the accused and the same Sessions Judge ordered that these two accused should be committed to the sessions. It was held that he was an interested party and therefore had no jurisdiction to order the discharged persons to be committed to the sessions. None of these decisions goes as far as to say that a Magistrate or Judge who merely expressed an opinion that there was no sufficient reason to stop a prosecution, is an interested person. There is no more ground for thinking Mr. Sivaramakrishnan interested in this case, than the Deputy Magistrate in the case dealt with in Queen-Empress v. Chenchi Reddi (1901) 24 Mad. 238. There is, however, one case which, in general outline, is something like the present case; but special circumstances existed in that case. The Sessions Judge, as District Judge, heard the appeal from the order of the District Munsif sanctioning a complaint and used very strong language in dismissing the appeal. He said that the mortgage bond in question was 'replete with some of the clearest forgeries that Were ever perpetrated' and was 'obviously made dishonestly and fraudulently.' The learned Judges who dealt with this matter in revision did not say that the Sessions Judge had no jurisdiction: but they thought it proper, for reasons not expressed, to direct the appeal to be re-heard by another Judge. In the present case Mr. Sivaramabrishnan merely quoted a part of the District Munsif's judgment and said that there was sufficient material to justify the District Munsif in laying a complaint.

5. Another technical objection raised by the learned counsel for the accused is that the Sessions Judge has admitted documents wholesale from the civil case which are not admissible; in particular, he complains of the free use of the judgment of the District Munsif in the civil proceedings. Judgments are admissible to show the parties to the proceedings, the points raised and the decisions thereon. The reasons given are of course irrelevant; but the learned Sessions Judge certainly did not consider himself bound nor could he have been influenced-by any remarks in the judgments in the civil case. As the arguments in the Section 476 proceedings and in the civil suit were necessarily much the same as in the criminal trial, one would expect a similarity in the reasons given in the criminal Court and in the civil Court, but that does not mean that the Sessions Judge was influenced by the decisions in the civil Court. Still less does it mean that the Judge considered that he was in any way bound by them. Coming to a consideration of the facts of the case, P.W. 3 filed his account books and showed what, amounts were due from the accused on two marupata in the various years from 1107 onwards and what amounts were paid. He says that in the year 1113, 1000 seers of paddy were paid and 480 seers remained due. He admits that Ex. C (the forged document) was written by him and that he and his brother signed it, but he says that Ex. C is a receipt that he gave in the year 1107 and was not one given by him on the same day and month of the year 1113. The most important evidence against the accused is the internal evidence of Ex. C itself. Exhibit C is written on a scrap of paper; and it is clear that the whole body of the document has been over-written in order to make what was originally faint appear clearer. There are also many erasures in the document, the significance of most of which is not now very clear; but two very important erasures have taken place in the last two figures of the year. The year is given in two places and in the second of these the erasure and the re-writing of the letters is so patent that nobody at the most casual glance could fail to observe it. The paper has been so thinned by rubbing that a hole has almost been made in the paper. It is argued very vehemently by Mr. Viswanatha Iyer that where the year is written on the first occasion there has been no erasure; but I have no doubt that there was. The figure '7' is very much darker and it is clear that under the last two figures the paper is very rough and that roughness is pretty clearly due to erasure. Then, as the learned Judge points out, the wording of Ex. C is not at all what one would expect on the facts as they existed in the year 1113. Exhibit C says: 'Received the entire paddy rent due under registered marupats...for the year 1113 M.E. inclusive of the arrears of the previous year.'

6. Now, as already pointed out, 1000 seers had been paid only a few days before the date that Ex. C now bears. One finds no reference to the payment of 1000 seers and to the balance remaining due, but there is a statement that the payment was of the entire rent due under the registered marupats for the year 1113 inclusive of the arrears of the previous year. Such a recital is however suitable to the state of affairs in 1107, when the dues for the year on one marupat were 410 seers and the arrears of the previous year 170 seers, whereas for the other marupat the whole of the rent was paid. Another point that weighed with the learned Sessions Judge was that from the year 1108 onwards P.W. 3 was using only printed receipts. It is possible that for some reason or other he might have forgotten to take out his receipt book when he made the collection in question; but it has been pointed out that the arrangements by P.W. 3 when he collected his dues were very elaborate. He used to hire a big boat and travel in it for days, going from one tenant to another and filling the boat with the paddy that was due to him. Another point is that the date and the month on Ex. C agree with the date and the month of the payment in 1107 as sould appear from P.W. 3's accounts. Again, the learned Sessions Judge points out that it is unlikely that if the accused was able to pay only 1000 seers a few days earlier, he would have been able to pay 480 seers on the date now borne by Ex. C. The accused realizes this difficulty and explains it by saying that he had the whole of the rent ready to pay on the first of the two occasions, that P.W. 3 was unable to take all the rice because his boat was already full, that he therefore took 1000 seers only saying that he would come back for the rest and that he did so a few days later. The accused examined some witnesses to support him in this statement, hut they did not figure very well in the witness box. Although it was not incumbent on the accused to produce the receipts for 1107 to prove that Ex, C could not have been for that year, one cannot ignore the fact that he did not do so. He said that in that year his father was alive and took the receipt and so the accused cannot produce it; but one of the witnesses for the accused rather supports the prosecution case that the father of the accused died some years before 1107. The internal evidence of Ex. C the printed receipt filed by P.W. 3 and the accounts kept by him in the regular course of business, are sufficient, taken with the evidence of P.W. 3, to establish the charges against the accused beyond all reasonable doubt. The sentences are not excessive. The convictions and sentences are therefore affirmed and the appeal dismissed.

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