Jogendra Nath Mondal vs The Union Credit Bank Ltd.

S.R. Das Gupta, J.—This is an appeal against an order of Sarkar, J., refusing to make a complaint u/s 476 of the Code of Criminal Procedure. The Petitioner before Sarkar, J., was one Jogendra Nath Mondal. His name appears as the Plaintiff in a suit filed some time in 1949. His case is that he did not sign the plaint in the said suit nor did he sign the verification: clause on the warrant in favour of the attorney for the Plaintiff on record in the said suit. His further case is that one Birendra Nath Dutt Choudhury, who is Respondent No. 2 in this appeal forged his signature on the said warrant of attorney and on the plaint including the verification clause and also put certain initials in the hody of the plaint purporting to he his initials The said suit came into the Special List on November 7, 1949, and was dismissed for non-prosecution. On December 1, 1949, on the application of the solicitor for the Plaintiff on record, the suit was restored. Thereafter, the Bank went into liquidation. On January 3, 1950, the suit was ordered to be withdrawn with liberty to prove the claim in the liquidation proceedings. ''The case of the Petitioner, Jogendra Nath Mondal, was that it was on April 16, 1951, that he, for the first time, came to know of the institution of the said suit from a telephonic call made by Durga Sankar Mukherji, solicitor for the Plaintiff on record in the said suit. Thereafter he caused searches to be made in the records of the said suit and came to know that such a suit had been filed in his name.

The Petitioner, thereupon, made the present application to this Court u/s 476 of the Code of Criminal Procedure. In the said application the Petitioner prayed for an order that the Registrar, Original Side, should make a complaint on behalf of the Court u/s 476 of the Code of Criminal Procedure to the Chief Presidency Magistrate against the said Birendra Tath Dutt Choudhury so that the said Birendra Nath. Dutt Choudhury may be prosecuted for having committed the forgeries as aforesaid and having used the forged documents in connection with, or in the proceedings initiated or taken in this Court under Sections 466, 471, 474 and 418 of the Indian Penal Code or any other relevant sections. The application was heard by Sarkar, J., and the learned Judge dismissed the said application on a preliminary point. His Lordship held that an order u/s 476 of the Code of Criminal Procedure could only be made against a party to the proceeding in relation to which the offence is alleged to have been committed and as Dutt Choudhury was not a party to the suit in the proceedings in which the alleged forgeries took place, no order could be made against him under the said section.

Sarkar, J., in support of his said view referred to the decision of Rankin, C.J., and C.C. Chose, J., in Prabhatranjan Barat v. Umashankar Chatterji ILR (1930) Cal. 727. It is not disputed before us that in the said case it has been held that an order u/s 476 of the Code of Criminal Procedure cannot be made against a person who was not a party to the suit in the proceedings in which the offence in question is said to have been committed.

Section 195 of the Code of Criminal Procedure also makes this position clear. Clause (b) of Sub-section (1) of Section 195 of the Code of Criminal Procedure provides that-

No Court shall take congnizance of any offence punishable under any of the sections mentioned in the said clause where such offences are said to have been committed in or in relation to any proceeding in any court except on the complaint in writing of such court.

One of the sections mentioned in that clause is Section 205 of the Indian Penal Code Clause (c) of Sub-section (1) of Section 195 of the Code of Criminal Procedure provides that-

No court shall take cognizance of any of the offences, mentioned in the said clause of the Indian Penal Code when such offences are 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.

The offences mentioned in the petition are some of the offences mentioned in the said clause. Thus from the provisions of Clause (c) of Sub-section (1) of Section 195 of the Code of Criminal Procedure it is clear that a complaint u/s 476 of the Code of Criminal Procedure in respect of the offences mentioned in the said clause can he made only if the said offences are alleged to have been committed by a party to the proceedings in any court in respect of a document produced or given in evidence in such court. In this case Dutt Choudhury cannot be said to be a party to the proceedings in question.

Mr. Banerji, appearing on behalf of the Appellant, contended before us that in the circumstances of this case we should hold that Dutt Choudhury was a party to the said suit. I am unable to accept that contention. Dutt Choudhury might have signed the name of the Petitioner Jogendra Nath Mondal but, by no stretch of imagination, it can be said that he was a party to the suit. The suit was, if at all, a suit of Jogendra Nath Mondal and any decree which might have been passed in the said suit would have been a decree in favour of the said Jogendra Nath Mondal. Dutt Choudhury could not avail himself of the benefit of that decree and he could not contend that the said decree was passed in his favour. Jogendra Nath Mondal, if he satisfies the court that it was not his suit and that his signature was forged on the plaint, can no doubt ask the court to have the suit taken off the file. But the suit, so long it remains on the record, is a suit of Jogendra Nath Mondal and not of Dutt Choudhury. It cannot be said that Dutt Choudhury was a party to the suit. That being so, I am clearly of the opinion that the learned Judge was right in holding that an order u/s 476 of the Code of Criminal Procedure cannot be made against Dutt Choudhury, he not being a party to the proceedings in relation to which the offence is alleged to have been committed.

Mr. Banerji then contended before us that the learned Judge should have, in the circumstances of this case, made a complaint u/s 205 of the Indian Penal Code. In other words, his contention was that Clause (b) of Sub-section (1) of Section 195 of the Code of Criminal Procedure applied to the present case and it is not necessary that the person against whom an order u/s 476 of the Code of Criminal Procedure in respect of an offence u/s 205 of the Indian Penal Code is asked for should be a parry to the proceedings in which the said offence is alleged to have been committed.

With regard to this contention of Mr. Banerji I should slate at the very outset that it was not contended before Sarkar, J., that a complaint should be made u/s 205 of the Indian Penal Code. The sections mentioned in the petition were Sections 460, 471, 474 and 418 of the Indian Penal Code, It was not pressed before Sarkar, J., that an enquiry should be made as to whether or not an offence u/s 205 of the Indian Penal Code appeared to have been committed and a complaint should be made in respect of an offence under the said section and the matter was not at all considered from that point of view.

Mr. Basu, appearing on behalf of the Respondent No. 2, also pointed out to us that the Appellant has not taken this ground even in the Memorandum of Appeal filed by him.

In the circumstances, I am of the opinion that we should not, at this stage, go into the question as to whether or not a complaint should be made u/s 205 of the Indian Penal Code.

Apart from this, we are of opinion that on the materials which are before this Court we shall not be justified in making an order for such an enquiry. Section 205 of the Indian Penal Code reads as follows:

Whoever falsely personates another, and in such assumed character makes any admission or statement, or confesses judgment, or causes any process to be issued or becomes bail or security, or does any other act in any suit or criminal prosecution shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

It is not the case of any of the parties to these proceedings that the said Dutt Choudhury ever represented himself to be Jogendra Nath Mondal. The Petitioner on his own admission does not know anything of this matter except that the signatures appearing on the plaint and on the other documents mentioned were not his signature but had been forged by the said Dutt Choudhudy. According to his own case the solicitor who telephoned him did not say that Dutt Choudhury personated himself as Jogendra Nath Mondal. What Dutt Choudhury is said to have represented to the solicitor was that Jogendra Nath Mondal had signed the plaint and the other documents mentioned. Thus it is nobody''s case that Dutt Choudhury ever represented himself to be Jogendra Nath Mondal. In the circumstances no useful purpose would be served by enquiring into the matter and find out whether or not Dutt Choudhury represented himself to be Jogendra Nath Mondal.

In the result, therefore, I hold that the appeal fails and the same is dismissed with costs.

Das, J.

I agree.