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Ajoy Kr. Roy Vs. Raj Ballav Mondal and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKolkata High Court
Decided On
Judge
Reported in1978CriLJ1502
AppellantAjoy Kr. Roy
RespondentRaj Ballav Mondal and ors.
Cases Referred(Atchayya v. Gangayya). Mr. Dasgupta
Excerpt:
- .....300/- without surety. this rule challenges the said order dated the 8th of feb., 1977 by which the learned magistrate after examining the complainant and other prosecution witnesses issued summons.3. mr. dasgupta, the learned advocate, appearing in support of the rule argued that the whole proceedings was vitiated in view of section 195(1)(b)(ii) of the cr. p.c. as the complaint was not initiated in this case by the sub-registrar. according to mr. dasgupta the sub-registry is a court within the meaning of the expression used in the section and he relied on an old decision of the madras high court in re, venkataohala pillai, reported in (1887) ilk 10 mad 154 which was again followed in (1892) ilr 15 mad 138 (atchayya v. gangayya). mr. dasgupta urged that after the said decisions, when the.....
Judgment:

Sudhamay Basu, J.

1. This Rule was obtained to quash the criminal proceedings under Section 265, I.P.C. pending in the court of the Sub-divisional Judicial Magistrate, Basirhat in Case No. C 151 of 1977.

2. It appears that a petition of complaint under Sections 120(B), 465 and 468, I.P.C. was filed against the petitioner and others before the Sub-divisional Judicial Magistrate, Basirhat alleging that Sonapukur Samabay Krishi Unayan Samity, a registered Co-operative Society is being managed by its managing committee according to the provisions of the Co-operative Society Rules and Bys-laws, The accused petitioner No. 1 and others became members of the said samity in 1976. The function of the said samity, inter alia, is to collect money from the West Bengal Government and give loans to the members for the purpose of agriculture. The samity has a common seal approved by the Registrar, 24-Parganas. Every member of the samity is entitled to get loans from the samity for agricultural purpose on execution of a mortgage deed known as 'Karbar-Nama' and on the security of the landed properties by deposits of relevant documents and papers relating to the title. The samity would get the deeds verified by a lawyer through the Secretary and have a report from him regarding non-encumbrance and the marketability of the properties. After that the common seal of the samity would be affixed before registration. It was alleged that the accused persons in conspiracy with one another and with dishonest intention to defraud the Samity induced Moni Mohan Mondal, Chairman of the Samity, to give forty two prescribed forms of mortgage to the accused persons on the false representation that they would execute Karbar-Nama after mortgaging their lands for which they would submit the relevant papers. The accused persons affixed the common seal of the samity behind the back of the Secretary and presented the deeds fraudulently obtained from witness No. 1 to the Sub-registry Office at Bhangur. On receipt of the said petition of complaint the learned Sub-Judicial Magistrate examined the complainant opposite party No. 1 who was the Secretary of the Samity and then summoned the accused petitioners under Section 465, I.P.C. by an order dated the 8th of Feb., 1977. The accused petitioners surrendered and were released on a bail of Rs. 300/- without surety. This rule challenges the said order dated the 8th of Feb., 1977 by which the learned Magistrate after examining the complainant and other prosecution witnesses issued summons.

3. Mr. Dasgupta, the learned advocate, appearing in support of the rule argued that the whole proceedings was vitiated in view of Section 195(1)(b)(ii) of the Cr. P.C. as the complaint was not initiated in this case by the Sub-registrar. According to Mr. Dasgupta the Sub-registry is a court within the meaning of the expression used in the section and he relied on an old decision of the Madras High Court in re, Venkataohala Pillai, reported in (1887) ILK 10 Mad 154 which was again followed in (1892) ILR 15 Mad 138 (Atchayya v. Gangayya). Mr. Dasgupta urged that after the said decisions, when the Criminal P. C. of 1898 was enacted it was specifically provided that the Sub-Registrar would not be regarded as a court. The new Cr. P.C. of 1973, however, has deleted the said provision. Therefore, according to Mr. Dasgupta the Sub-registrar should be deemed to be a court and the complaint in question not having been made at the instance of Sub-registrar the learned Magistrate should not have taken any cognisance or issued any summons.

4. It is, however, difficult to accept the said contentions. Obviously Mr. Dasgupta has not noted Sub-section (3) of Section 195 of the new Cr. P.C. in which it has been stated that in Clause (b) of Sub-section (1) the term 'Court' means a civil, criminal or revenue court, and includes a tribunal constituted by or under a Central Provincial or State Act if declared by that Act to be a court for the purposes of this section. Therefore omission of the expression 'but does not include a Registrar or Sub-Registrar under the Indian Registration Act 1877' which was there in the Cr. P.C. of 1898 is of no assistance to him. The implications of the deletion of the said clause in the new Cr. P.C. is not to make a Sub-registrar or Registrar a court. The new definition of court in Sub-clause (3) obviates such a construction. Under the new definition a court means only a civil, criminal or revenue court and includes only a new category viz., tribunal constituted by an Act if declared by that Act to be a court for the purposes of this section. The Sub-registrar being neither a civil nor a criminal nor a revenue court nor being a tribunal of the nature mentioned above can hardly come within the ambit of the expression 'court' as contemplated under Section 195, Cr. P.C.

5. Mr. Dasgupta further contended that there is even no allegation as to forgery but that too does not seem to be tenable because the complaint itself contains such specific allegations in paras. 13 and 14.

6. In view of what is stated above the petition fails and the Rule is discharged.


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