Rajagopal Naidu and Another vs Agimoola Padayachi

Somasundaram, J.—This is a petition for quashing the committal (sic)who are two in number for (sic)offence u/s 417, 465, 467 and 471 of

Indian Penal Code The committal was on a private complaint filed by one (sic) Padayachi the paternal uncle of the second(sic) The complaint was

that (sic) brought into existence (sic)in the name of the first (sic)3rd April 1962 (Ex. P.2) (sic)September 1962 Ex P.1, (sic) December 1964 (Ex.

P. 3) (sic)of the Respondent''s (sic) to false presentation (sic) come to know (sic) Ex.P. 17 signification (sic)from the (sic) (P.W. 4) demanding

(sic) of the principle and interest due ON Ex P. 3. The Respondent then filed the complaint before the First Class Magistrate at pondicherry. His

thumb impressions were taken by the court and sent to the expert P.W. 2 for comparison and opinion. The latter opined that the thumb impression

In Ex. P. 3 is not that of the Respondent P.W. 1 who was an ex-Notice, deposed to the registration of the document in the year 1964. The

Respondent as P.W. 3 swore that be never affixed his thumb impression in Ex. P. 3 and that he never received any amount as stated therein. when

questioned by the court, the Petitioners stated that the documents were executed for consideration by P.W. 3. Observing that a prima facie case

had been made out, the learned Magistrate has committed the Petitioners to stand their trial before the Court of Sessions in that place. The

Petitioners contend that this committal could not be sustained.

Prima facie there is evidence to show that the mortgage deed Ex. P. 3 was not executed by P.W. 3. The expert P.W. 2 has deposed, on a

comparison of the finger impressions, that the one In Ex P. 3 is not that of P.W. 3. But, on behalf of the Petitioner, it is contended that there is no

evidence to show that the forgery in question was in fact done by the Petitioners. The second Petitioner is not a stranger; P.W. 3 is his paternal

uncle. P.W. 1, the ex-Nature, has deposed that both these Petitioners were present at the time when the documents were executed. His evidence

is that one Adlmoola Padayachi affixed his thumb impression. The second Petitioner should have known that the documents were not being

executed by his paternal uncle and the evidence of P.W. 1 is that it was he who assisted the executants in affixing the impression at that time. The

question as to whether the first Petitioner had knowledge is a matter which will have to be considered with reference to the attendant circumstances

and the evidence that might be adduced in the trial in court. On behalf of the Respondent, it is urged that these acts were done by a regular

conspiracy on the part of both the Petitioners. The Sessions Court will have to consider the evidence available and frame the necessary charges

against the Petitioners. Suffice it to say, that there is prima facie evidence justifying a committal, and there is no ground for quashing the committal,

as prayed for by the Petitioners.

It is next contended on behalf of the Petitioners that the facts as alleged disclose an offence u/s 193 I P.C. falling within the purview of Section

195 of the Code of Criminal Procedure which contemplates a complaint by court.

The procedural aspects alone were filed. The Judge does not apply his mind to form an opinion at to the genuineness of the document. The first

Petitioner had initiated sale proceedings on this document is the court of first instance and then it was brought to the notice of the court by the

Respondent that the document was a forged one. He prayed for the stay of the proceedings pending disposal of this criminal case, which he had

filed before the First Class Magistrate. The sale proceedings were stayed under Article 250 of the French Code of Civil Procedure, which says

that when any document is stated to be forged, the procedure which the Civil court has to follow is only to stay all farther proceedings unless the

Judge finds that the case could be decided in-dependently of the forged document. Therefore, in these circumstances, there was no occasion for

determining the question about the falsity of the document in these stages, so as to justify a complaint by the court. The learned Additional Assistant

Sessions Judge has correctly negatived the contentions to this effect advanced by the Petitioners.

The Criminal Miscellaneous Petition is dismissed.

Offences under Sections 465, 467 and 471 I.P.C are graver offences than the one u/s 193, I.P.C . When a prosecution is launched only for the

former offences, it cannot be said that It is being done for evading the provisions of Section 195 Code of Criminal Procedure The accused should

be prosecuted for either or both the offices at the instance of the prosecution and in such cases the prosecution cannot be said to have done

something which is unwarranted by law.

Vide Chandrika Rao v. State of Bihar A.I R. 1967 S C. 170, 317. Further, the learned Additional Assistant Sessions Judge observes that the

impugned document has not been produced before any civil court, But, according to the procedure which was in vogue prior to the extension of

the code of CPC in Pondicherry, the production of the Grossex of expedition was not at all accessory. These grosse (copies) were notified directly

through the bailiff to the concerned judgment debtor and the papers relating to the procedural aspects alone were filed. The Judge does not apply

his mind to form an opinion at to the genuineness of the document. The first Petitioner had initiated sale proceedings on this document is the court

of first instance and then it was brought to the notice of the court by the Respondent that the document was a forged one. He prayed for the stay of

the proceedings pending disposal of this criminal case, which he had filed before the First Class Magistrate. The sale proceedings were stayed

under Article 250 f the French Code of Civil Procedure, which says that when any document is stated to be forged, the procedure which the Civil

court has to follow is only to stay all farther proceedings unless the Judge finds that the case could be decided in-dependently of the forged

document. Therefore, in these circumstances, there was no occasion for determining the question about the falsity of the document in these stages,

so as to justify a complaint by the court. The learned Additional Assistant Sessions Judge has correctly negatived the contentions to this effect

advanced by the Petitioners.

The Criminal Miscellaneous Petition is dismissed.