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In Re: Appadurai Nainar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in159Ind.Cas.853
AppellantIn Re: Appadurai Nainar and ors.
Cases ReferredPerianna Muthirian v. Vengu Ayyar
Excerpt:
criminal procedure code (act v of 1898), sections 195(1), (b) and (c), 476 - penal code (act xlv of 1860), sections 193, 463--madras village courts act (i of 1889), section 77--suit in panahayat court on forged pro-note--prosecution of plaintiff and attestors without complaint of panchayat court--maintainability--necessity of amending section 77, madras village courts act. - .....subsequent to its dismissal, a complaint with respect to an offence under section 467, indian penal code (forgery of a valuable security) was filed against the plaintiff in the case who is the first accused, and accused nos. 2, 3 and 4 who are, as already stated, the writer and attestors of the promissory note. on a preliminary objection on behalf of the first accused, the case against him was not proceeded with for want of a complaint from the panchayet court to take cognisance of the offence and an order was passed to that effect on november 23, 1934, dismissing the complaint against him. the preliminary objection on behalf of the first accused was based on section 195(1)(c) code of criminal procedure which says that:no court shall take cognizance of any offence described in.....
Judgment:
ORDER

1. This is an application to quash the commitment of accused Nos. 2 lo 4 in P.R.C. No. 13 of 1934 on the file of the Second Glass Magistrate's Court, Wandiwash, in the following circumstances.

2. A suit on a promissory note alleged to have been executed by the complainant in the case was instituted against him before a Panchayat Court by the 1st accused. The writer of the promissory note is accused No. 2, and accused Nos. 3 and 4, are the attestors. For the purpose of this Criminal Miscellaneous Petition it must be taken that the suit was dismissed by the Panchayat Court on the ground that the promissory note was a forgery. Subsequent to its dismissal, a complaint with respect to an offence under Section 467, Indian Penal Code (forgery of a valuable security) was filed against the plaintiff in the case who is the first accused, and accused Nos. 2, 3 and 4 who are, as already stated, the writer and attestors of the promissory note. On a preliminary objection on behalf of the first accused, the case against him was not proceeded with for want of a complaint from the Panchayet Court to take cognisance of the offence and an order was passed to that effect on November 23, 1934, dismissing the complaint against him. The preliminary objection on behalf of the first accused was based on Section 195(1)(c) Code of Criminal Procedure which says that:

No Court shall take cognizance of any offence described in Section 463, Indian Penal Code (forgery, etc., when such offence is alleged to have been committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.

3. As the Panchayat Court had not filed a complaint it was argued that Section 195(1)(b) was a bar to proceedings against the first accused as the offence is alleged to have been committed by him who was a party to proceeding in the Panchayat Court and this argument was accepted. The case against Accused Nos. 2 to 4, was proceeded with and they have been committed for trial to the Sessions Court.

4. On behalf of the petitioners Mr. Jayarama Iyer argues that no proceeding can be started against them also, because of the bar under Section 195(1)(b), Code of Criminal Procedure. His argument is this, that the allegations contained in the complaint against these petitioners amount to an offence under Section 193, Indian Penal Code and Section 195(1)(b) is a bar to the taking of cognizance of such a case without a complaint from the Court wherein the offence was committed. Section 195(1)(b), Code of Criminal Procedure says that no Court shall take cognizance of any offence punishable under certain specified sections of the Indian Penal Code of which one is Section 193, when such offence is alleged to have been committed in or in relation to any proceeding in any Court except on the complaint in writing of such Court or of some other Court to which such Court is subordinate.

5. The first paragraph of the complaint translated runs as follows:

With the object of collecting money from me, accused No. 1 fraudulently brought into existence a bond, dated May 26, 1931, purporting to have been executed by me, written by accused No. 2 and attested by accused Nos. 3 and 4 and has filed a suit thereon in the Srirangarajapuram Panchayat Court with a view to collect money and I received summons and plaint copy.

6. The other paragraphs are not relevant for the purpose of this petition. It is argued that it is clearly stated in this paragraph that the promissory note on which the suit before the Panchayat Court was instituted was fraudulently brought into existence by the parties concerned for the purpose of filing a suit and recovering the money from the complainant. If this is the true construction of the paragraph in the complaint, there can be no doubt that the offence alleged falls clearly within the provisions of Section 193, Indian Penal Code, and so, without a complaint from the Panchayet Court or of any Court to which such Court is subordinate, the Magistrate cannot take cognizance of the complaint. On behalf of the Public Prosecutor it is argued that the paragraph referred to is not susceptible of any other interpretation than this, viz., that the parties have concocted or fraudulently brought into existence a promissory note and have now filed a suit thereon with a view to recover money. The argument is that the object of concocting the promissory note may not necessarily have been to institute a suit to recover money. The promissory note was concocted and kept with the parties; and afterwards, a suit was instituted; the concoction of the promissory note, not being necessarily with a view to institute a suit upon it. If so, Section 193, Indian Penal Code, can have no application and it cannot be said that an offence under Section 193^ Indian Penal Code has been committed. We have had the original Tamil read to us. We must accept the construction put upon the paragraph by the learned Advocate for the petitioners. There is nothing in the complaint nor has any circumstance been brought to our notice to show that the object of the fraudulent creations of the promissory note was something other than the institution of the suit by which it was followed. We understand the paragraph to mean that the promissory note was brought into existence for the purpose of filing a suit and realising the money from the complainant. If so, having regard to the fact that the promissory note was alleged to be false, the offence committed would fall under Section 193, Indian Penal Code and sanction for taking proceedings (which is lacking in this case) of the Panchayet Court or of such Court to which it is subordinate is necessary to enable the Court to take cognizance of the offence. No doubt a case of forgery may be alleged against the parties. But it has been held in this Court in In re Ravanappa Reddi 55 M. 313 : 133 Ind. Cas. 779 : 35 L.W. 180 : (1931) M.W.N. 1314 : A.I.R. 1932 Mad. 253 : 33 Cr.L.J. 361 : Ind. Rul. (1932) Mad. 315 : (1932) Cr. Cas. 182 : 62 M.L.J. 735, that parties should not be allowed to evade the provisions of Section 195(1)(b), Criminal Procedure Code, by filing a complaint under another provision of the Penal Code, if clearly an offence under Section 193 or any other section mentioned in Section 195(1)(b) has been committed. Following that decision we hold that the Magistrate was not entitled to take cognizance of the case and the order of the commitment must, therefore, be set aside. We accordingly quash that order.

7. The position reduces itself to this, here is an instance of persons who are alleged to have committed an offence under Section 467, Indian Penal Code. Having regard to the provisions of Section 195(b) and the decision of this Court in In re, Ramnappz Reddi 55 M. 313 : 133 Ind. Cas. 779 : 35 L.W. 180 : (1931) M.W.N. 1314 : A.I.R. 1932 Mad. 253 : 33 Cr.L.J. 361 : Ind. Rul. (1932) Mad. 315 : (1932) Cr. Cas. 182 : 62 M.L.J. 735, no proceedings can be started against them with respect to this offence. Section 77 of the Village Courts Act says that nothing in the Criminal Procedure Code is applicable to village Courts except Section 463. If so, as my learned brother who has referred this case to a Bench states in his order:

Section 476, Criminal Procedure Code, can have no application and nobody can be prosecuted for fabricating false evidence for use in a Panchayet Court. The combination of all these rulings In re, Ravanappa Reddi 55 M. 313 : 133 Ind. Cas. 779 : 35 L.W. 180 : (1931) M.W.N. 1314 : A.I.R. 1932 Mad. 253 : 33 Cr.L.J. 361 : Ind. Rul. (1932) Mad. 315 : (1932) Cr. Cas. 182 : 62 M.L.J. 735, Perianna Muthirian v. Vengu Ayyar 58 M.L.J. 208 : 114 Ind. Cas 361 : A.I.R. 1929 Mad. 21 : 28 L.W. 687 : (1929) M.W.N. 196 : 33 Cr.L.J. 322., and In re Parameswaram Nambudri 39 M. 677 : 31 Ind. Cas. 161 : 18 M.L.T. 322 : 16 Cr.L.J. 721, results in this; here are three persons who seem to have forged a valuable security (an offence, punishable with transportation for life) but they cannot be tried because the forgery was committed in order to fabricate evidence for use in a Panchayat Court.'

8. This position is certainly not satisfactory. In our opinion the difficulty can be got over only by suitably amending Section 77 of the Madras Village Courts Act by providing that Section 476 also of the Criminal Procedure Code, would be applicable to proceedings of the Panchayet Court.


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