Appadurai Nainar vs Sampath Rao Nainar and Another

Madhavan Nair, J.—This is an application to quash the commitment of accused 2 to 4 in P.R.C. No. 13 of 1934 on the file of the Second

Class Magistrate''s Court, Wandiwash in the following circumstances.

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 first accused. The writer of the promissory note is accused 2 and accused 3 and 4 are the attestors. For the purpose of this Criminal

Miscellaneous Petition it may 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 u/s 467, Indian Penal Code (forgery of a valuable security) was filed against the

plaintiff in the case who is the first accused, and accused 2, 3 and 4 who are as already stated the writer and the 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 Panchayat

Court to take cognizance of the offence and an order was passed to that effect on 23rd November, 1934, dismissing the complaint against him.

The preliminary objection on behalf of the first accused was based on Section 195(1) Criminal Procedure Code, 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.

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 a proceedings in the Panchayat Court and this argument was accepted. The

case against accused 2 to 4 was proceeded with and they have been committed for trial to the Sessions Court.

On behalf of the petitioners, Mr. Jayarama Aiyar argues that no proceeding can be started against them also, because of the bar u/s 195(1)(b)

Criminal Procedure Code. His argument is this, that the allegations contained in the complaint against these petitioners amount to an offence u/s

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) Criminal Procedure Code, 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.

The first paragraph of the complaint, translated runs as follows:

With the object of collecting money from me accused 1 fraudulently brought into existence a bond dated 26th May, 1931, purporting to have been

executed by me, written by accused 2 and attested by accused 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.

The other paragraphs are not relevant for the purpose of this petition. It is argued that it is clearly stated in this paragragh 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 complaint. 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 Panchayat 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 that 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 u/s 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 u/s 193 Indian Penal Code, and sanction for

taking proceedings (which is lacking in this case) of the Panchayat Courts 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 Reddy I.L.R.(1931) 55 Mad. 343 : 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 u/s 193 or any other section

mentioned in Section 195(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 comitment must therefore be set aside. We accordingly quash that order.

The position reduces itself to this, here is an instance of persons who are alleged to have committed an offence u/s 467, Indian Penal Code.

Having regard to the provisions of Section 195 (b) and the decision of this Court in In re, Ravanappa Reddi I.L.R.(1931) 55 Mad. 343 : 1931 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

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 Panchayat Court. The combination of all these rulings In re, Ravanappa Reddi I.L.R.(1931) 55 Mad. 343 : 62 M.L.J. 735 and

Perianna Muthiran v. Vengu Aiyar (1928) 56 M.L.J. 208 and In re, Parameswaran Nambudri I.L.R.(1915) 39 Mad. 677 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. 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 Panchayat Court.