V. Vaidyanathan vs K. Kalyanaraman

M. Karpagavinayagam, J.—V. Vaidyanathan, the Petitioner herein, on being aggrieved over the orders of the trial Court and the Sessions Court, rejecting his prayer for discharge u/s 245 Code of Criminal Procedure has filed the above petition u/s 482 Cr. P.C. seeking to set aside the order passed by the learned II Additional Sessions Judge. Chennai in Crl.R.C. No. 97 of 1996 dated 27.9.1996 and praying for discharge.

K. Kalyanaraman, the Respondent herein, filed a private complaint against the Petitioner for the offence under Sections 468. 471 read with 468,469,471 read with 469. 193. 196. 199,200 and 500 IPC.

The Petitioner on being served with summons filed a petition in Crl.MP. No. 425 of 1995 before the trial Court u/s 245 Code of Criminal Procedure requesting to discharge him. The trial Court, by the order dated 10.5.1996, dismissed the application on the ground that the said prayer could not be granted prior to the recording of the evidence. The Petitioner filed a revision in Crl.R.C. No. 97 of 1996 before the Sessions Court, which in turn confirmed the order of the trial Court and dismissed the revision by an order dated 27.9.1998., Hence, this petition u/s 482 Cr.P.C.

Challenging the impugned orders. Mr. B.S. Jhothiraman, the learned Counsel for the Petitioner would make the following con-lenlions:

i) The allegations arc bald and the complaint does not make out any offence alleged.

ii) Since the allegations would refer about the filing of the false statement before the Registrar of Societies, the complaint should lune been filed by the Registrar of Societies u/s 195 Code of Criminal Procedure and not by any other person and therefore, the complaint is invalid.

In reply to the said contentions, the party-in-person, the Respondent, herein would make the following contentions:

i) Having lost before the revisional Court, the Petitioner cannot challenge the said order u/s 482 Code of Criminal Procedure since it would amount to second revision.

ii) The prayer for the discharge, before the trial Court u/s 245 Code of Criminal Procedure itself is premature, in view of the fact that no evidence has been recorded and as such, the finding given by the trial Court as well as the revisional Court with regard to the maintainability of the petition u/s 245(2) Code of Criminal Procedure is correct.

iii) The allegations contained in the complaint would not attract Section 195 Code of Criminal Procedure and therefore, the complaint presented by the Respondent with reference to the various offences mentioned in the complaint is perfectly maintainable.

I have carefully considered the rival contentions and also gone through the petition, counter and other records.

Let us now consider the point urged by the counsel for the Petitioner in regard to the maintainability of the complaint by the Respondent and the allegations contained in the complaint.

The gist of the complaint is as follows:

The accused is a habitual offender. He prepared particulars in Form No. VI as the occupation of the complainant as L.D.C., whereas the actual position of the complainant was Tax Assistant in Income Tax Department. Thus, the accused made a false entry in the record or made document in Form No. VI containing false statement intending such circumstances false entry or false statement may appear in evidence in a proceeding taken by law before the Registrar of Societies. Madras Central, who is a public servant. Thus, the accused committed the offence under Sections 468, 469, 471, 196, 199, 200 and 500 IPC.

On going through the complaint and other records it is seen that the main grievance of the complainant/Respondent herein is that the Petitioner made a false statement or false declaration before the Registrar of Societies staling that the occupation of the complainant was falsely mentioned by the accused in Form No. VI as L.D.C., whereas the actual position of the complainant was Tax Assistant. Income Tax Department.

The offence mentioned in the complaint viz., Sections 468, 469 and 471 IPC. would relate to forgery for the purpose of cheating, forgery for the purpose of harming reputation and using a forged document as genuine. It is not mentioned in the complaint that there is a publication with reference to defamation and in consequence his image was lowered down. However, there is no averment or material to show that the enquiry was conducted by the Registrar of Societies and in the enquiry it was found that the false particulars were given in Form No. I submitted by the accused and the same was made for the purpose of cheating the Registrar of Societies.

Sections 193, 196 and 200 IPC. would relate to punishment for false evidence, using evidence known to be false and using a declaration known to be false. Admittedly, the proceedings before the Registrar of Societies cannot be considered to be judicial proceedings. Therefore, the allegation if at all would constitute the offence u/s 177 or 182 or 191 IPC, Section 177 IPC, would relate to the furnishing of false information before the judicial public servant. Section 182 IPC. would relate to the false information with intent to cause public servant to use his lawful power to the injury of another person and Section 191 IPC, would relate to giving false evidence. Thus, the offences would, certainly attract Section 195(1)(a) Cr.P.C.

u/s 195(1)(a) Code of Criminal Procedure no Court shall take cognizance of any offence punishable under Sections 172 to 186 except on the complaint in writing of public servant concerned or of some other public servant to whom he is administratively subordinate Thus, it is clear that in order to circumvent Section 195(1)(a) Code of Criminal Procedure the other offences mentioned in Section 195(1)(b) have been purposely added in the complaint.

As laid down by this Court as well as by the Supreme Court in Ponnusamy, Inspector of Police, Trichy Airport v. Suyamba-nandam (1989 L.W. CRL. 411), V.?. Padmanabhan and 3 others v. M.A. Narusimhan and 2 others (1995 1 L.W (Crl.) 164). ?.H. Birla Mohan and others, Dr. S. Dutt Vs. State of Uttar Pradesh, , it is not permissible for the prosecution to drop a serious charge and select one which does not require the procedure u/s 195 of the Code of Criminal Procedure If the charges would relate to the offence u/s 195(1)(a) Cr.P.C., the complaint in writing by the public servant concerned is required. When there is a legal bar for the Magistrate to take cognizance only on complaint in writing by the public servant concerned, the attitude of the complainant to circumvent Section 195 Code of Criminal Procedure by resorting to prosecute other offences, without attempting to move the officer concerned for taking action u/s 195 Cr.P.C, cannot be allowed to stand.

In the light of the above principles, it is clear that the complainant has attempted to circumvent the provisions of Section 195 Cr.P.C, in this case and as such the proceedings arc necessarily to be held as invalid and consequently Petitioner is liable to be discharged and accordingly discharged.

Before parting with this case. I shall point out one disturbing feature noticed in the

counter. The party-in-person has mentioned in paragraph-14 as follows:

The Respondent herein submits that the trial Court failed to remand the Petitioner and therefore the Petitioner and Jothi-raman are indulging to obtain orders by Fraud And Collusion to escape punishment and to save property from forfeiture

The conduct of the party-in-person in accusing Mr. Jothiraman, the counsel appearing for the Petitioner through the counter affidavit is highly condemnable. The Respondent/party -in-person should not be allowed to make such a serious allegation against the counsel, as if Mr. Jothiraman, learned Counsel for the Petitioner is indulging along with the Petitioner in fraud and collusion to obtain orders from the Courts to escape punishment. For making such baseless allegation, in my view, suitable costs is to be imposed on the Respondent. Accordingly, the Respondent is directed to pay Rs. 5.000/- as costs to Mr. Jothiraman, counsel for the Petitioner within two months from the dale of receipt of a copy of this order. If this direction is not complied with Mr. Jothiraman, learned Counsel for the Petitioner is open to bring to the notice of this Court by filing appropriate petition.

With this observation, the petition is allowed.