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Shrikrishna Khatry Vs. Gobardhan Nath Tandon and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1985CriLJ1956
AppellantShrikrishna Khatry
RespondentGobardhan Nath Tandon and anr.
Cases ReferredBudhuram v. State of Rajasthan
Excerpt:
- .....recovered from the son-in-law of the petitioner on the basis of a search warrant issued by the learned magistrate and those were returned to the opposite party no. 1 on a bond. in connection with the said case the petitioner filed an application praying for discharge, on 22-7-78, wherein he stated inter alia as under:that two life size bronze statues are nothing but electric light female shaped bronze coloured stands which were sold by the complainant to smt. shyama kapoor, wife of late mohan lal kapoor of 2/1, deb lane, calcutta for rs. 4,000/- on 15-1-75, and the complainant himself issued a receipt for sale of the aforesaid statues in her favour on receipt of the said sum of rs. 4,000/- from her. a photostat copy of the said receipt is annexed herewith, marked with letter 'a' for.....
Judgment:
ORDER

Monoj Kumar Mukherjee, J.

1. On Feb. 25,1978 the opposite party No. 1 in this Rule filed a complaint in the Court of the learned Chief Metropolitan Magistrate, Calcutta alleging commission of an offence under Section 406 of the I.P.C. by the petitioner and of an offence under Section 411 of the I.P.C. by one Raja Tandon, the son-in-law of the petitioner. The property in respect of which the offences have been allegedly committed is a pair of life size bronze statues, which according to the opposite party No. 1 are rare antique works of art and are unique as curios. On that complaint the petitioner was summoned under Section 406 of the I.P.C. and his son-in-law was summoned under Section 411 of the I.P.C. The statues were also recovered from the son-in-law of the petitioner on the basis of a search warrant issued by the learned Magistrate and those were returned to the opposite party No. 1 on a bond. In connection with the said case the petitioner filed an application praying for discharge, on 22-7-78, wherein he stated inter alia as under:

That two life size bronze statues are nothing but electric light female shaped bronze coloured stands which were sold by the complainant to Smt. Shyama Kapoor, wife of Late Mohan Lal Kapoor of 2/1, Deb Lane, Calcutta for Rs. 4,000/- on 15-1-75, and the complainant himself issued a receipt for sale of the aforesaid statues in her favour on receipt of the said sum of Rs. 4,000/- from her. A photostat copy of the said receipt is annexed herewith, marked with letter 'A' for your honour's perusal.

After hearing the parties the learned Magistrate rejected the said application.

2. Thereafter on April 27, 1979 the opposite party No. 1 filed an application before the learned Chief Metropolitan Magistrate, Calcutta stating that a complaint may be filed against the petitioner and two others under Section 120B read with Section 471 of the I.P.C. and also under Section 471 of the I.P.C. against the petitioner. In that application the opposite party No. 1 stated, inter alia, that in his application under Section 245(2) Cr. P.C. that petitioner made a false statement that the two statues were sold by the opposite party No. 1 to Smt. Shyama Kapoor and that the copy of the receipt annexed to that application (annexure 'A') was a forged receipt which the petitioner, and the other two persons arraigned in the application under Section 340 of the Cr. P.C., knew or had reason to believe to be forged. This application was registered as M-99(A) of 1979. The learned Magistrate considered the application and issued notice upon the petitioner to show cause. After the cause was shown the parties were heard and by his order dt. 12-7-80 the learned Magistrate directed the petitioner to produce the original of the receipt (Annexure 'A'), for the purpose of enquiry under Section 340 Cr. P.C. within 15 days from the date of his order failing which, the learned Magistrate observed, legal consequences would follow. The above order is under challenge in this Rule.

3. A Court can exercise its powers under Section 340 Cr. P.C. in respect of any offence referred to in Clause (b) of Sub-section (1) of Section 195 Cr. P.C. which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in proceeding in that Court. In the facts of the instant case the offence allegedly committed is in respect of a document, namely a receipt, produced before the learned Magistrate along with the application under Section 245(2) Cr. P.C. In the case of Budhuram v. State of Rajasthan, reported in 1963 (2) Cri LJ 698 the Supreme Court has held that a complaint by the Court is required where the offence is of forging or of using as genuine any document which is known or believed to be a forged document when such document is produced or given in evidence in Court. It has been further held that it is only when the forged document itself is produced in Court that a complaint by the Court is required. In other words, when the forged document is not produced but a copy only is produced Section 195(1)(b)(ii) will not apply in its terms. In view Of the above decision of the Supreme Court and in view of the clear language of Section 340 Cr. P.C. if the original receipt was produced along with the application under Section 245(2) Cr. P.C., the Court can enquire into the matter and can file a complaint for such production of the original document. Conversely, if the original document was not produced the Court cannot make the preliminary enquiry nor can it file the complaint if it is found that the document vas forged. This aspect of the matter assumes importance as the parties have joined issue on the question whether the original document was in fact produced along with the application filed by the petitioner for his discharge under Section 245(2) Cr. P.C. While the opposite party No. 1 relied upon the statement made in para 7 of his application filed under Section 340 Cr. P.C. that the original of the receipt was produced before the learned Magistrate in course of hearing at the application for discharge and upon a list of documents appearing on the records indicating such filing, the petitioner relied upon the following observation made by the learned Magistrate in the impugned order to indicate that the original receipt was not filed, but only a copy of the receipt was filed:

In that petition of discharge, a receipt was purportedly executed by the first party-petitioner of this case in favour of opposite party No. 3 stating that the statues in question were absolutely sold in favour of opposite party No. 3 for a sum of Rs. 4,000/-. That receipt was admittedly filed by O.P. No, 1 in this Court under a photostat copy while the original of the same was filed in the City Civil Court in the earlier civil proceeding between the parties. The first party-petitioner now claims that he has had not yet the opportunity to peruse the contents of the above receipt in original....

From the materials placed by the learned Advocates I am unable to arrive at a finding as to whether the original receipt was produced before the learned Chief Metropolitan Magistrate, Calcutta along with the application for discharge. Unless it is prima facie established that the original was in fact produced as evidence the learned Magistrate will have no jurisdiction to proceed with the enquiry under Section 340 Cr. P.C. nor will he have jurisdiction to file a complaint. Judged in that context the impugned order of the learned Magistrate cannot be sustained. I therefore set aside the impugned order and direct the learned Magistrate to proceed with the application filed under Section 340 of the Cr. P.C. in accordance with law and in the light of the observations made hereinbefore.

4. Since the revisional application succeeds on this score alone the other points raised on behalf of the parties are kept open. The Rule is thus made absolute.


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