Fakir Upadhya vs Padmalav Mohanty

Mohapatra, J.—This is a civil revision against an order of the lower appellate Court who had set aside the judgment of the trial Court in appeal u/s 476-B, Criminal P. C. The present petitioner was the defendant in the money Suit No. 407 of 1951 in the Court of the Munsif, Puri, brought by the plaintiff, who is opposite party in this revision. The suit was based upon a receipt purported to contain thumb impression and the signature of the defendant the present petitioner. The defence taken was that the receipt was a forged document and the transaction is mala fide. Prior to the case being heard, the plaintiff made default and allowed the case to be dismissed. The defendant having put in a petition u/s 476, Criminal P. C. for holding an enquiry against the plaintiff for offences under Ss. 209, 465 and 471, Penal Code, the trial Court ordered a complaint to be filed. The lower appellate Court, however, has set aside the order of the trial Court on the main ground that there is no express finding that it is expedient in the interests of justice that a complaint should be filed.

Both the Courts below have come to the concurrent finding that it appears that the document in question is a forged one. The plaintiff was also aware that the document was a forged one and wanted to make use of it in the suit. The plaintiff''s plea was that prior to the institution of the suit, he had made over the real receipt to one Chintamani Mohapatra for collection of the dues from the defendant, and the ''said Chintamani Mohapatra having returned it to the plaintiff on the reason that no collection could be made, the suit was filed. The plaintiff having consulted his pleader Sri Haradhan Mitra believed that it was a forged document, and therefore, allowed the case to be dismissed for default. The plea, that the real document was handed over to Chintamani for collection and that Chintamani might have fabricated the document, has been strongly disbelieved by the Courts below. After these findings, in my opinion, the lower appellate Court was not justified in setting aside the order of the trial Court, merely on the ground that there was no specific finding that it is expedient in the interests of justice to file such a complaint.

The view is now well settled that even though it is really necessary that the Courts making inquiry u/s 476, Criminal P C. ought to apply their mind, before filing of the complaint to the facts and circumstances, and to come to the conclusion that it is necessary in the interests of justice to file such a complaint, the mere absence of a distinct finding to the effect does not invalidate the order. The lower appellate Court, if he felt that the trial Court did not really apply his mind to the pertinent question, should have remanded the case, or. he himself should have applied his mind to the facts and circumstances, and should have given us the benefit of his finding either way. The lower appellate Court, however, without finding that it is not necessary to file such a complaint, set aside the order of the trial Court on the technical ground that there is no finding that it is expedient in the interests of justice that a complaint should be filed. In that procedure he has. completely gone wrong. I am supported in my view by reference to the judgments of Rowland J. of the Patna High Court in -- Bankey Lal Vs. Rampadarath Singh, , and -- Nawalal Jha and Another Vs. Emperor, . The same view has also been taken by Reuben J. (as he then was) in the case reported in -- Ram Prasad Ojha and Another Vs. Maheshanand Pandey, , wherein the observations run to the effect:

"Although it is well-established that the Courts must consider whether a prosecution is necessary in the interest of justice as required by Section 476, Criminal P. C., the failure to come to an express finding on the point does not necessarily render the order invalid. it is sufficient if record shows that the Court applied its mind to the point and in a case where a grave offence is alleged to have been committed, it would be unreasonable for the Court to take the view that the point was not considered. In the last resort, the High Court may consider the point in revision if it appears to have not been considered by the Courts below."

After going through the judgment of the trial Court carefully, I am of the view that it cannot be said that the trial Court had not applied his mind to this aspect of the case; and even for myself, after hearing the facts and circumstances of the case, and going through both the judgments of the Courts below, I am of the opinion that it is expedient in the interests of justice that such a complaint should be filed.

In this view, therefore, the judgment of the appellate Court is set as de and the order made by the trial Court for filing the complaint is restored.

There will be no order as to costs.