K.S. Doraiswami Nadar vs Sivanupandia Nadar

Alfred Henry Lionel Leach, C.J.—This is an appeal from an order passed by Horwill, J., u/s 476 of the Criminal Procedure Code, directing

that a complaint be filed against the appellant, charging him with having committed an offence u/s 471, Indian Penal Code.

The appellant was the organiser of a chit fund and the respondent was a subscriber. The respondent filed a suit in the Court of the Subordinate

Judge of Tinnevelly to recover from the appellant the sum of Rs. 850, with interest amounting to Rs. 88-8-8, which he alleged was due to him by

the appellant in respect of subscriptions paid to the chit fund. It was a small cause suit. The defence was that all moneys due to the respondent had

been repaid. On the 4th February, 1939, there was, it was said, due to the plaintiff on balance the sum of Rs. 467-1-4. Of this, Rs. 17-1-4, was

remitted and Rs. 130 was adjusted against a promissory note alleged to have been executed by the respondent and another in favour of the

appellant. This left Rs. 320 which the appellant paid over to the respondent, who granted him a receipt for the amount. The Subordinate Judge

accepted the evidence adduced by the appellant and dismissed the suit. The respondent alleged that the promissory note and the receipt were

forgeries, but after consideration of the evidence the Subordinate Judge held that they were genuine documents.

Against the decree dismissing the suit, the respondent filed an application for revision u/s 25 of the Provincial Small Cause Courts Act, 1887.

The petition was heard by Horwill, J., who took a different view of the evidence with regard to the receipt. He accepted the finding of the

Subordinate Judge that the promissory note was genuine, but he considered that the receipt had been forged. As the result he passed a decree in

favour of the respondent for Rs. 320 with interest. Subsequently the respondent applied for an order directing the appellant''s prosecution u/s 476,

Criminal Procedure Code, and his application was granted. Hence this appeal.

Earned Counsel for the respondent has contended that an appeal does not lie from the order of Horwill, J. directing the lodging of a complaint

and it is necessary to deal with this matter first. Section 476-B, Criminal Procedure Code, permits a person against whom an order has been made

u/s 476, Criminal Procedure Code, to appeal to the Court to which the Court ordering the lodging of the complaint is subordinate within the

meaning of Sub-section (3) of Section 195. This sub-section says inter alia that for the purposes of the section a Court shall be deemed to be

subordinate to the Court to which appeals ordinarily lie from appealable decrees. The question is whether Horwill, J., constituted a Court

subordinate to a Division Bench of the Court, and we consider that he did.

Clause 15 of the Letters Patent provides that an appeal shall lie from the judgment of one Judge of the Court to a Division Bench unless the

judgment is one passed in second appeal and no certificate has been granted declaring the case to be a fit one for appeal, or unless it has been

passed in the exercise of revisional jurisdiction or in the exercise of criminal jurisdiction. The order under appeal is a judgrnent within the meaning

of the clause and is clearly appealable, unless it can be said to have been passed in the exercise of revisional or criminal: jurisdiction. It was not

passed in the exercise of revisional jurisdiction. It was passed on an application made to the Court u/s 4.76, Criminal Procedure Code. This has

not been seriously contested, but Mr. A. Swaminatha Aiyar has argued that it was passed in the exercise of criminal jurisdiction. In view of the

decision of the Full Bench of this Court in E.P. Kumaravel Nadar Vs. T.P. Shanmuga Nadar and Others, , this argument cannot be accepted. In

that case it was held that a Civil Court does not ceaseto be a Civil Court when it is considering an application made to it u/s 476, Criminal

Procedure Code, and the Civil Procedure Code: governs the application. In the course of his argument, Mr. Swaminatha Aiyar stressed certain

observations of Schwabe, C.J., in K.V. Muniswami Mudaliar Vs. Rajaratnam Pillai and Others, . Schwabe, C.J., did appear to be inclined to the

opinion that a Court dealing with such a matter is exercising criminal jurisdiction; but he expressly stated that he was not deciding the question and

he had not heard the other side. Coutts-Trotter, J., who was a member of the Full Bench which decided that case, said that he did not wish to be

taken as expressing any opinion on this question. The remarks of Schwabe, C.J., are not binding on us and certainly cannot be followed in view of

the decision in E.P. Kumaravel Nadar Vs. T.P. Shanmuga Nadar and Others, , with which we respectfully agree. The decision in K.V. Muniswami

Mudaliar Vs. Rajaratnam Pillai and Others, has, however, some bearing on the present case. There sanction to prosecute a plaintiff was granted by

a learned Judge sitting on the Original Side of the Court, and an appeal was filed against his order. The question was whether a Judge sitting on the

Original Side constituted a Subordinate Court within the meaning of Section 195 of the Criminal Procedure Code and it was held that he was. The

appeal was allowed and the sanction for prosecution revoked.

Before clause 15 of the Letters Patent was amended by an Order in Council dated the 3rd November, 1927, appeals from judgments passed

by Judges sitting alone were allowed in all cases, including an order passed u/s 25 of the Provincial Small Cause Courts Act: see Venkata Reddi v.

Taylor (1893) 3 M.L.J. 259 : ILR Mad. 100. As the result of the amendment, appeals from the judgments of Judges sitting alone are not allowed

in certain specified cases, but this case is not one of them. Therefore an appeal does lie and Horwill, J., constituted a subordinate Court within the

meaning of Section 195(3) Criminal Procedure Code. The preliminary objection must be overruled.

Turning now to the merits of the appeal, the learned Judge misconceived the powers given to him by Section 25 of the Provincial Small Cause

Courts Act. That section says that the High Court, for the purpose of satisfying itself that a decree or order made in a case decided by a Court of

Small Causes was according to law, may call for the case and pass such order with respect thereto as it thinks fit. This does not mean, however,

that the High Court can constitute itself a Court of appeal in such cases. It has no right to reverse the trial Court on questions of fact, unless the trial

Court has given a perverse judgment or has overlooked essential evidence in the case: see In re Ganapathi Pillai 1912 M.W.N. 181 and

Kayarohana Chettiar v. Nagalinga Chettiar (1915) M.W.N. 533. this Court has read the section as allowing a right of interference when there has

been an erroneous decision in law, and has perhaps in this respect gone further than some High Courts; but it has not interpreted the section as

allowing the Court to review evidence as a Court of appeal. Horwill, J., viewed the evidence as a Court of appeal. He came to the conclusion that

the receipt for R.s. 320 was a forgery as the result of his own examination of the document and testimony of the handwriting expert of the Central

Provinces and Bihar. We are not prepared to say from an examination of the document that it is a forgery. The Subordinate Judge examined the

document. He had regard to the evidence of the witnesses who spoke in support of its genuineness and he considered the evidence of the

handwriting expert. After consideration of all the evidence on the record he came to the conclusion that it was a genuine document. In these

circumstances the learned Judge who heard the petition for revision had no right to interfere with the decision of the Subordinate Judge and

consequently he erred in expressing the opinion that the document had been fabricated. In these circumstances, he should not have passed an

order u/s 476, Criminal Procedure Code. The appeal must be allowed and the order of the learned Judge cancelled.