Laldip Singh vs Ramchander Singh

Das, J.—This is an application in revision against an order of the learned District Judge of Saran directing that a complaint be filed against the petitioner, Laldip Singh for an offence u/s 199, Penal Code or any other section which may be applicable to the facts of the case. The circumstances out of which the present application has arisen are shortly stated below. The petitioner as a mortgagor had made a deposit of a certain sum of money to the account of the opposite party, Ramchander Singh as mortgagee in respect of an usufructuary mortgage (zerpeshgi) under the provisions of Section 83, T.P. Act. This deposit gave rise to a Misc. Case No. 364 of 1944, in the Court of the Fourth Munsif of Chapra. A notice of the deposit was issued, and was stated to have been served on the mortgagee personally on 1-9-1944 in village Piprahia. The service report showed Laldip Singh as the identifier, and certain other persons as witnesses of the aforesaid service of notice. Laldip Singh swore an affidavit stating therein that service had been effected on the mortgagee personally on 1-9-1944. The mortgagee alleged that no service had been effected on him on 1-9-1944 in village Piprahia; on the contrary, the mortgagee stated that he was in village Bagha in the district of Champaran on the said date and that a false service report and a false affidavit had been made. The mortgagee thereupon prayed for an inquiry under the provisions of Section 476, Criminal P.C., so that a complaint might be filed against Laldip Singh and others. The matter first came before the learned Mansif who on a consideration of the materials before him came to the finding that the mortgagee had failed to make out a case against the present petitioner. In that view of the matter, he declined to make a complaint. An appeal was then taken to the learned District Judge who has found that a prima facie case has been made out against the petitioner and that it is expedient in the interest of justice to make a complaint. The learned District Judge has, therefore, directed that a complaint be made against the petitioner. It is against this order of the learned District Judge that the present application is directed.

Learned Counsel for the petitioner has not addressed us on the facts of the case. It is, therefore, unnecessary to examine the truth or otherwise of the facts alleged against the petitioner; indeed, it would be inadvisable to do so, because that would be one of the main questions at the trial. Learned Counsel for the petitioner has, however, raised certain questions of law which require serious consideration. Firstly, he has contended that Section 476, Criminal P.C., has no application inasmuch as the Munsif before whom the deposit u/s 83, T.P. Act, was made was not a Court and did not function as a Court in respect of the deposit u/s 83, T.P. Act. It is contended that if the Munsif did not function as a Court in respect of the deposit, then the provisions of Section 476 would not apply and there would be no right of appeal to the District Judge. This contention has been sought to be supported by certain observations made by their Lordships of the Judicial Committee in Alexander John Forbes v. Ameeroonissa Begum (1863) 10 M.I.A. 340, where their Lordships have stated that under Regulation 17 of 1806, Section 8, the functions of the Judge are purely ministerial. It is true that even under the provisions of Section 83, T.P. Act, it is not for the Court to ascertain the amount due on the mortgage or the sufficiency of the deposit, or to decide the rival claims of contending mortgagees. The observations of their Lordships of the Judicial Committee have, however, to be taken with reference to the context in which they were made, and their Lordships were not considering the position and function of the Court as respects the service of the notice on the mortgagee. Section 83, T.P. Act, itself says that the deposit is to be made in a Court, in which a suit for redemption might have been instituted. I am unable to accept the contention that the Court in which such a deposit is made, ceases to be a Court merely because it does not give any decision on the amount due on the mortgage, or the sufficiency of the deposit or on the rival claims of contending mortgagees. Though no formal adjudication is made on such a deposit, the functions which are performed in respect of the deposit are functions performed by the Court. To hold that the Munsif before whom the deposit is made is not a Court at all will be going against the express terms of Section 83, T.P. Act, which says that the deposit is to be made in the Court in which a suit for redemption would lie. I am, therefore, unable to accept the contention raised on behalf of the petitioner that the Munsif before whom the deposit was made was not a Court at all.

The second contention raised on behalf of the petitioner is closely connected with the first contention, and is that even if the Munsif is a Court, he does not function as such in respect of the deposit. This contention has been developed in the following way: the proceedings in respect of the deposit being ministerial, there was no "judicial proceeding" before the Munsif and, therefore, even if the facts alleged against the petitioner are correct, no offence either u/s 193 or u/s 199, Penal Code, has been committed in respect of the affidavit sworn by the petitioner. It is contended that Section 199, Penal Code, refers to a declaration which any Court of justice or any public servant or other person is bound or authorised by law to receive as evidence. Our attention has been drawn to the definition of a ''Court of Justice'' in Section 20, Penal Code, and it is contended that the Munsif was not acting as a Court of justice in respect of the deposit u/s 83, T.P. Act, nor was he bound or authorised by law to receive any declaration as evidence of the service of notice on the mortgagee. As to Section 193, Penal Code, it is contended that the proceeding not being a "judicial proceeding" the first part of Section 193 does not apply; nor does the second part apply inasmuch as the declarations made in the affidavit were not "evidence" either in the miscellaneous case itself, nor could they be evidence in any subsequent judicial proceeding. Learned Counsel for the petitioner has placed great reliance on Adhar Singh v. Ablakh Singh 1895 A.W.N. 145. In that case, the charge was in respect of forging certain documents and of giving false evidence in support thereof; the documents were neither put in evidence before the Court, nor brought to the notice of the Court in the course of the proceeding u/s 83. The observations made in that case were to the following effect:

He (counsel for the petitioner) argues, and I think his contention is obviously sound, that the proceedings contemplated by Section 83 are of a purely executive character. They involve the determination of no issue, the adjudication upon no right, the taking of no evidence. The work done seems to me purely executive. If money is deposited in satisfaction of a mortgage-debt by a mortgagor, and the mortgagee is willing to take that money and deposits his mortgage-deed or deeds to be handed over to the mortgagor, that is the whole transaction, and I fail to see how it falls within the definition of a judicial proceeding contained in Section 4, Civil P.C. * * * * It appears manifest to me that there was no proceeding before the Munsif, no document produced In evidence, that he was sitting in no proceeding in which he had the right to take evidence at all, and therefore that his action in this matter and his sanction are in point of law an absolute nullity.

Learned Counsel for the petitioner has placed great reliance on the observations made above. Here, again, I think that the observations have to be taken with reference to the facts of that case. The Court in that case was not called upon to decide any question regarding the documents which were filed and which were stated to have been forged and the Court performed no judicial function regarding them. It could not therefore be said that the documents so filed were "evidence" in that case. The question of the service of notice, however, stands on a different footing. Section 83, T.P. Act, itself lays down that the Court must cause a written notice of the deposit to be served on the mortgagee. It is, therefore, a part of the duty or function of the Court to see that a written notice of the deposit is served on the mortgagee. It is true, as has been contended by learned Counsel for the petitioner, that the Court in which the deposit is made does not finally decide the question as to whether the notice has been properly served or not, and the question may arise for decision in a suit for redemption when the further question of cessation of interest under the provisions of Section 84, T.P. Act, is raised. Though the Court in which the deposit is made does not adjudicate on the question of the service of notice, still it has to satisfy itself, at least prima facie, that a written notice of the deposit has been served on the mortgagee, For this part of the duty or function of the Court, the Court must have prima facie evidence of service of the notice on the mortgagee, and may for that purpose accept the report of the serving peon or an affidavit in proof of service as laid down in the General Rules and Circular Orders of this Court for the guidance of Subordinate Civil Courts. In that view of the matter, it cannot be said that the Court was performing no judicial act in accepting or acting upon the affidavit filed in support of the service of notice. The Court is authorised by law to receive such affidavit in proof of the service of notice,

If I may say so with respect, the observations made in 1895 A.W.N. 145 referred to above are correct in so far as they relate to the facts of that case; if however, they purport to lay down a general rule, as is contended by learned Counsel for the petitioner, that there can never be an offence u/s 199 or 193, Penal Code, in respect of a proceeding u/s 83, T.P. Act, then I must say with respect that I do not agree. Take, for example, a case in which a person falsely claims to be a mortgagee and tries to take the money deposited in favour of the mortgagee by putting in a forged petition. It can hardly be said that the Court before which the proceeding u/s 83, T.P. Act, is pending and whose duty it is to see that the money is paid to the mortgagee, has no right to make a complaint in respect of the offence committed in the proceeding before it. I do not think that any general or inflexible rule can be laid down that a Court in which a proceeding u/s 83, T.P. Act, is pending can never make a complaint in respect of an offence committed in the proceeding before it. I must make it clear, however, that no final decision can be given at this stage on the question if the petitioner has or has not committed an offence u/s 193 or u/s 199, Penal Code. The question can only be finally decided at the trial. All that can be stated at present is that a prima facie case has been made out, and that it was open to the District Judge to make a complaint. Nothing which I have stated here should, therefore, be taken as finally deter mining the question if the petitioner has or has not committed an offence u/s 199 or any other section of the Penal Code. All that can be stated is that the Court dealing with the deposit u/s 83, T.P. Act, was authorised by law to receive the affidavit as evidence of the service of notice and was, therefore, legally competent to make a complaint in respect of it.

Learned Counsel for the petitioner has also relied on Abdul Majid v. Krishna Lal Nag (93) 20 Cal. 724. The facts of that case were, however, entirely different. In that case, a proceeding was started against a person calling upon him to deliver certain accounts and papers in respect of an estate for which a common manager had been appointed. It was held that there was no provision in the Bengal Tenancy Act authorising a District Judge to make such an enquiry or to order the applicant to deliver any such papers. In those circumstances, it was observed that there was no provision of law or any rule having the force of law permitting the use of an affidavit in such proceedings or authorizing the administration of oath to persons who professed to file an affidavit in such proceedings.

There has been some argument before us if the affidavit in question can be legally used in evidence in any subsequent judicial proceedings, such as a redemption suit. Learned Counsel for the petitioner has contended before us that the affidavit in question cannot be used in evidence by the party making it, and reliance has been placed on Empress v. Gauri Shankar (84) 6 All. 42 and Emperor v. Chandra Kumar Missir (05) Cri.L.J. 46. The learned Government pleader appearing for the Crown has drawn our attention to Baroda Kanta Sarkar v. Emperor AIR 1916 Cal. 553 , where it has been observed that it is the intention that creates the criminal offence and not the fact as to whether, under the terms of the law, the document is admissible in evidence. The learned Government Pleader has also referred to Kari Gope Vs. Mahanth Manmohan Das, where it has been observed that even in a case in which no affidavit is required from an identifier, the offence of fabricating false evidence within the meaning of Section 193, will be complete if the affidavit is intended to be used in a judicial proceeding. Prima facie, the affidavit in this case must have been filed with the intention of proving the service of notice on the mortgagee so that the mortgagee may be deprived of interest thereafter. It is, however, unnecessary to discuss this question in any great detail, in view of my finding that the Court before which the proceeding u/s 83, T.P. Act, was pending was functioning as a Court in respect of the service of notice and was authorised by law to receive the affidavit in dispute as evidence of the service of notice on the mortgagee. For the reasons given above, I would decline to interfere in this case. The result, therefore, is that the application fails, and the rule is discharged.

Agarwala, J.

I agree.