Pashupati Nath De vs Murari Mohan De

N.C. Mukherji, J.—This is an appeal against an order passed on September 25, 1974, by A.K. De J. in Suit No. 3069 of 1956 in the Ordinary Original Civil Jurisdiction of this Court rejecting an application filed by the Appellant u/s 476 of the Code of Criminal Procedure read with Section 195 of the Code now under Sections 195 and 340 of the Code, 1973.

Nandarani Dasi, mother of the Appellant, filed the suit for recovery of money due on a mortgage. She signed the plaint and the warrant of Attorney in English as she used to sign her name mostly in English. She got a final decree. She put up for sale the mortgaged properties. In that connection a petition purportedly signed by Nandarani Dasi was filed on March 1, 1960. The Defendants of the suit made an application on July 25 for setting aside the Court''s order made on Nandarani''s petition. An affidavit-in-opposition was filed on August 3, 1960. Nandarani Dasi died on December 24, 1970. The Petitioner on going through the record on September 3, 1971, detected that various criminal offences had been committed in the said suit by his brother Murari, his father Kashinath and Murari''s wife Nandita and as such, an application as stated above was filed with a prayer that after an enquiry the Court would be pleased to make a complaint in writing against Nandita u/s 205 of the Indian Penal Code, against Nandita, Kashinath and Murari under Sections 205/120B of the Indian Penal Code for committing an offence u/s 205 and against Kashinath and Murari under Sections 205/109 of the Indian Penal Code to abet the commission of the said offence. It is stated in the petition that Nandita falsely personated Nandarani Dasi before the Court interpreter Sri Sur when the affidavit-in-opposition was sworn on August 3, 1960, that Nandarani Dasi did not make the affidavit-in-opposition, that she did not sign and that the signature on it in Bengali was made by Nandita. It is further stated that the three opposite parties entered into a criminal conspiracy to commit that offence and that the opposite parties Nos. 1 and 2 abetted her to commit the same. On this application a Rule was issued. The opposite parties entered appearance to oppose the Rule but did not file any affidavit-in opposition.

The learned Judge after considering the facts and circumstances of the case and the statements made in the petition was of the opinion that it was not expedient in the interest of justice to make an inquiry into the offences alleged to have been committed by the opposite parties or by any of them. He was of further opinion that neither the statements in the affidavit of the Petitioner nor the documents, placed during the hearing, made out any case for making a complaint for an offence either u/s 205 or under Sections 205/109 or under Sections 205/120B of the Indian Penal Code. In that view of his finding the learned Judge discharged the Rule. Being aggrieved, this appeal has been filed.

Mr. Dilip Kumar Dutt, the learned Advocate appearing on behalf of the Respondents, takes a preliminary objection regarding maintainability of the appeal. Mr. Dutt contends that against an order passed by a High Court u/s 340 of the Code of Criminal Procedure, 1973, no appeal lies. Section 341 lays down the provisions where an appeal lies against an order passed u/s 340. Section 341 reads as follows:

Any person on whose application any Court other than a High Court has refused to make a complaint under Sub-section (1) or Sub-section (2) of Section 340, or against whom such a complaint has been made by such Court may appeal to the Court to which such former Court is subordinate within the meaning of Sub-section (4) of Section 195....

Mr. Dutt daws our attention to Section 476B of the old Code where it was provided that--

Any person on whose application any Civil, Revenue or Criminal Court has refused to make a complaint u/s 476 or Section 476A, or against whom such a complaint has been made, may appeal to the Court to which such former Court is subordinate within the meaning of Section 195, Sub-section (3).

The words ''other than a High Court'' have been introduced in Section 341 of the new Code and as such, it is clear that under the new Code no appeal lies against an order passed by a Judge of this Court on an application u/s 340. The new Code came into force from April 1, 1974 and the application u/s 340 was filed on May 28, 1974. There is, therefore, no doubt that an appeal against an order passed on such application will be governed by the provisions of the new Code. The learned Advocate appearing on behalf of the Appellant, however, contends that Section 5 of the new Code, which is a saving clause, saves the provisions contained in Clause 15 of the Letters Patent which provide that an appeal lies from an order of a Single Judge to the Division Bench of this Court. Section 5 reads as follows:

Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force.

Mr. Dutt, on the other hand, contends that Section 5 cannot come in aid to say that though an appeal from an order passed by a Single Judge has been prohibited u/s 341 of the Code, yet an appeal will lie because of Clause 15 of the Letters Patent. In the old Code there was no restriction in preferring an appeal from an order passed u/s 476 or Section 476A, but in Section 341 of the new Code it has been clearly provided that no appeal lies against an order passed by this Court on an application u/s 340. A similar question came up for decision in a case before the Supreme Court in South Asia Industries Private Ltd. Vs. S.B. Sarup Singh and Others, . Their Lord-ships laid down:

That if a specific enactment makes'' an order of a Single Judge--conclusive and final, the appeal provided in the Letters Patent will not prevail over such bar; it is only if there is no such bar that the appeal lies under the Letters Patent.

In view of the observations referred to above, we have no hesitation to hold that irrespective of any provision in Clause 15 of the Letters Patent no appeal lies against an order passed by a Judge of this Court on an application u/s 340 of the Code. We, therefore, hold that this appeal is not maintainable.

With regard to merits we fully agree with the learned Judge that the Petitioner has not been able to make out even a prima facie case and that being so, the learned Judge is quite right in not making any enquiry into the complaint and in rejecting the application. The alleged signature was made on August 3, 1960. Nandarani died in 1970 and it was only on May 28, 1974, that the Petitioner came with a story that the signature of Nandarani Dasi was not made by Nandarani and it was made by Nandita and that Nandita falsely personated Nandarani. It has not been stated in the petition that the Petitioner saw Nandita to sign Nandarani''s name on the affidavit-in opposition. It has also not been stated that the Petitioner was acquainted with Nandarani''s or Nandita''s signature. As such, he cannot assert that the signature on the affidavit-in-opposition was not of Nandarani but that of Nandita. It may be that the signature appearing in the affidavit-in-opposition is not of Nandarani but that by itself cannot make out a case that it was Nandita who signed as Nandarani. The mere fact that the signature was made in presence of the Court interpreter does not establish even prima facie that it was Nandita who appeared before the Court interpreter and put her signature as Nandarani. The person who put the signature was not identified before the Commissioner of Affidavits and we understand there is no such practice of identification in the Original Side. In such circumstances, the learned Judge was quite right to hold that no case of false personation had been made out and in that view of his finding he was surely correct to say that no case of conspiracy or abetment could be made out. The learned Judge noted the fact that for this very act the Petitioner previously filed an application u/s 476 of the old Code and the same was rejected. After that the Petitioner has filed a complaint under Sections 465/471 of the Indian Penal Code and that the said case is pending for trial before the learned Magistrate. For the reasons stated above we do not find anything to interfere with the order passed by the learned Judge.

In the result, this appeal is dismissed. Costs as are permissible under the Rules are allowed. Certified for counsel.

B.C. Ray J.

I agree.