Rameshwar Marwari vs King-Emperor

Ross, J.—The question for decision in this case is whether the complaint against the petitioner under Sections 211 and 471 of the Indian Penal Code should stand or should be withdrawn.

The facts briefly are that the petitioner laid an information before the police that Madan Mohan Bohidar, who had been in his service, had misappropriated Rs. 66-14-0 which had been made over to him to pay a certain bill for printing. The police sent up a charge sheet. Madan Mohan Bohidar was acquitted by the Magistrate who awarded him compensation holding that the case was false and vexatious. The ground on which the Magistrate came to this conclusion, as appears from his judgment, was substantially this that the account book in which the entry of the payment of Rs. 66-14-0 Was made by the petitioner was not kept in the ordinary course of business inasmuch as it did not contain certain entries that it ought to have contained and was much shorter than his other account books and not fit to be acted upon.

He also considered the oral evidence unsatisfactory; and he further took into consideration certain circumstances arising out of the relations between the parties and also the effect of the evidence of one Narayan Dora who belonged to the printing press and had asked for payment of the bill in June and had been told by the petitioner that the bill was missing this witness had again applied for payment three months later and during that time no action had been taken.

The accused then applied to the trial Court for action u/s 476 of the Code of Criminal Procedure and the trying Magistrate refused to act under that section on the ground that he had already awarded compensation. The District Magistrate considered that ground insufficient for not taking action in the case of a serious offence against public justice, basing his conclusion on the findings about the account book. An appeal against the order of the District Magistrate was dismissed by the Sessions Judge who also referred to the fact that the account book was not regularly kept and transactions, which admittedly took place, were not entered in it. He also dealt with the motive for bringing a false case, namely, that Madan Mohan Bohidar had left the petitioner''s service and had brought a civil suit against him; and he further referred to the evidence of Narayan Dora.

With regard to the last point, it may be mentioned that the learned Sessions Judge seems to have made a mistake in saying that when Narayan Dora made his first demand in June, the petitioner said that he had already paid the money to Madan. But the subsidiary considerations based upon motive and the evidence of Narayan Dora really do not advance the case against the petitioner. The facts that Madan Mohan Bohidar had left the petitioner''s service and that there had been litigation between them are consistent with either view of the case. As to the inaction of the petitioner for three months after he ascertained that the printing bill had not been paid, that may be also explained in various ways. The case really depends on the account book. Now it is one thing to hold that because an account book does not appear to have been kept in the regular course of business and does not contain entries that it ought to have contained, therefore it cannot be acted upon in order to convict a person whose name appears therein as having received money; and it is a quite a different thing to hold as a positive fact that that account book is forged.

As the Book is in The petitioner''s own handwriting, it does not appear that there could be any evidence to establish the fact of forgery except that of Madan Mohan Bohidar himself; and it has not been suggested throughout these proceedings that any other evidence is available. The evidence of an interested witness like Madan Mohan Bohidar could hardly form the basis of a conviction. It seems to me therefore on the record, as it stands, that this was not a case in which a prosecution should have been ordered, especially having regard to the fact that the Police had originally reported the petitioner''s case to be true and the trying Magistrate declined to prosecute. The learned Assistant Government Advocate referred to the decision in Ranjit Narain Singh and Others Vs. Rambahadur Singh and Others, where it is observed that whether a complaint should be made u/s 476 of the Code of Criminal Procedure is almost invariably a matter of discretion. This general remark must, however, be read in light of the facts of that case; and the facts of that case were entirely different from the facts of the present case.

In my opinion no prima facie case has been made out against the petitioner and there is no likelihood that, if these proceedings go on, they will end in his conviction.

I would therefore allow this application and quash the proceedings.