K.S. Subramania Ayyar vs Swamikannu Chetty

Burn, J.—The petitioner was accused of an offence u/s 471, I.P.C., in a complaint presented by the respondent to the Subdivisional

Magistrate, Chidambaram. The complaint was taken on file for offences under Sections 465 and 471, I.P.C., and transferred to the 2nd Class

Magistrate of Vridhachalam for preliminary inquiry under Ch. 18, Criminal P.C. The Sub Magistrate recorded a sworn statement from the

complainant and issued processes to the accused and witnesses, but before the inquiry could begin he was succeeded by another Magistrate, who

heard preliminary arguments and held that the complaint was barred by Section 195, Criminal P.C., because there was no complaint by the District

Munsif of Vridhachalam. The Magistrate then passed an order purporting to discharge the accused (the petitioner) u/s 209(2), Criminal P.C. In

revision the learned Sessions Judge of South Arcot acting u/s 436, Criminal P.C., set aside the order of discharge and directed the Sub-Magistrate

to restore the complaint to file and dispose of it according to law. The accused has prayed that the order of the learned Sessions Judge may be

quashed as being contrary to law and without jurisdiction.

The facts, as alleged in the respondent''s complaint are quite simple. Ramanuja Naidu of Melapapanampatti in Vridhachalam Taluk executed on

5th December 1927, a promissory note for Rs. 150, in favour of Kuppuswami Chetti of Melpadi. On 15th October 1930, Kuppuswami Chetty

endorsed the promissory note in favour of the respondent. Until 15th October 1930, no endorsement of payment on account of principal or

interest had been made on the promissory note and therefore the respondent''s claim under it would become barred by limitation on 5th December

1930. On 19th November 1930, the respondent issued a notice to the promisor to which he received no reply. On 2nd December 1930 the

respondent arranged with the petitioner, who is, or was then, a vakil''s clerk for the filing of a suit on the promissory note in the Court of the District

Munsif, Vridhachalam. He sent to the petitioner the promissory note, a vakalat form duly signed, and a blank sheet duly signed on which the plaint

might be copied out; he sent also at the same time Rs. 24, for the fees and necessary expenses. The petitioner failed to see that the suit was filed

within the period of limitation, but had it filed some time afterwards, and then the promissory note bore an endorsement of the payment of Rs. 2, on

15th March 1929. The respondent accused the petitioner of having somehow forged the endorsement in order to cover up his own offence, and

stated that by filing the promissory note in the Court the petitioner had committed an offence u/s 471, I.P.C. The suit was dismissed by the District

Munsif on the ground that the claim was barred by limitation. (This appears from the order of the learned District Judge; the records of the suit

have not been discussed before me.)

The Sub-Magistrate took the view that the offence alleged in the complaint was clearly one of intentionally fabricating false evidence for the

purpose of being used in a judicial proceeding (Section 193, I.P.C.) and that therefore a prosecution was barred by Section 195(1)(b), Criminal

P.C., for want of a complaint by the District Munsif in whose Court the false document had been used. There can be no doubt that the person who

wrote the false endorsement did so with the intention of causing it to appear that a payment of Rs. 2 had been made on 15th March 1929. That

would be an important item of evidence in the suit, because if such a payment had been made, the bar of limitation would be removed. The

respondent''s contention, which appears to have found favour with the learned Sessions Judge is that the petitioner forged the endorsement not in

order to make false evidence for the suit, but in order to cover up his own failure to file the suit in time. This contention is very obviously due to a

confusion of motive with intention. No doubt the motive of the petitioner was to save himself from blame for delay in having the suit filed. But the

intention of the act of forgery and the intention of the act of filing the forged document, have to be gathered from the acts themselves. The intention

with which the forged endorsement was made was to cause it to appear that a payment of Rs. 2 had been made on 15th March 1929. The

intention with which the forged document was filed in Court is equally clear; it was to make it appear to the District Munsif who was to try the suit

that the claim was not barred by limitation. If the District Munsif believed that, and gave a decree for the plaintiff'', the mistake of the respondent

would be concealed and he would escape responsibility for the fees which had been entrusted to him. That however, though it may have been the

ulterior object which the petitioner desired to gain, was not the intention with which he acted when he filed the promissory note in the Court.

The offence of fabricating false evidence for use in a judicial proceeding (Section 193, I.P.C.), is specified in Section 195(1)(b), Criminal P.C.,

and therefore no Court could take cognizance of that offence in this case without the complaint of the District Munsif, Chidambaram. The offence

of using as genuine a forged document (Section 471, I.P.C.), is specified in Section 195(1)(c), Criminal P.C., and the petitioner not being a party

or a witness to the suit, no complaint of the District Munsif is necessary before he could be prosecuted for that offence. The respondent has

attempted to prosecute the petitioner for the offence u/s 471, I.P.C., although the facts alleged would constitute an offence u/s 193, I.P.C. This is

precisely what is forbidden by the decisions in the cases of Ravanappa Reddi In re AIR 1932 Mad 253 and Perianna Muthirian Vs. M. Vengu

Aiyar and Others, .

This is sufficient to show that the order of the learned Sessions Judge must beset aside and I do not think it is necessary to discuss the other

decisions cited by the learned Sessions Judge. On the merits of this case it is in my opinion clearly one in which no prosecution should be

entertained except upon the complaint of the District Munsif, Vridhachalam. I have no doubt whatever that the plaint in the suit upon the pro-note

contained an averment of the payment of Rs. 2 on 15th March 1929. That averment was signed by the plaintiff (the respondent in this petition) and

the learned District Munsif would want from him a full and satisfactory explanation thereof, before deciding at his instance to file a complaint against

the present petitioner. The respondent, it is clear from his complaint, has foreseen this difficulty; hence the allegation in the complaint that he signed

and delivered to the petitioner a blank sheet on which the plaint could be drafted. Under Order 6, Rule 15, Civil P.C., the respondent was bound

to append a verification to his plaint, and, if he had applied to the District Munsif to prosecute the petitioner, he would have found that it was not so

easy to escape from the implications of his verification by a mere assertion that he had signed on a blank sheet. This would have had an important

bearing on the question whether the District Munsif would consider it expedient in the interests of justice to prosecute the petitioner. He might even

have considered it necessary to prosecute the respondent also.

There is another technical point to which Mr. K.S. Jayarama Iyer for the petitioner has called my attention though it has not been fully argued,

since it was not mentioned in the petition. The learned Sub-Magistrate has stated in his order that he discharged the petitioner u/s 209(2), Criminal

P.C. He had decided that he had no jurisdiction to entertain the complaint, but strangely enough it did not occur to him that if he had no jurisdiction

to entertain the complaint he could certainly have no jurisdiction to discharge the accused u/s 209(2), Criminal P.C. Moreover an order of

discharge u/s 209(2), Criminal P.C., must be based on a consideration that the charge is groundless. There is nothing in this case upon which the

Magistrate could have arrived at such a decision; nor in fact has he arrived at such a decision. The Magistrate''s order that he declined to proceed

with the case for want of jurisdiction was not an order that could be revised by the learned Sessions Judge. Though the Magistrate used the word

discharge"" his order was not in law an order of discharge at all, and the mere mention in it of Section 209(2), Criminal P.C., could not give the

learned Sessions Judge jurisdiction to deal with it u/s 436, Criminal P.C. Nor was it an order dismissing a complaint u/s 203, Criminal P.C., for,

such an order can only be passed by a Magistrate having jurisdiction to take cognizance of the complaint. The order of the learned Sessions Judge

directing further inquiry into the complaint against the petitioner is accordingly set aside.