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2005 DIGILAW 523 (ORI)

SAILENDRA PRADHAN v. VIPPARLA JYOTI

2005-09-06

R.N.BISWAL

body2005
( 1 ) THIS CRLMC arises out of petition filed under Section 482 of Cr. P. C. seeking quashing of the order of cognizance taken in 1 C. C. Case No. 70 of 2004 by the s. D. J. M. , Berhampur, Ganjam. ( 2 ) THE facts of the case lie in a narrow compass. Petitioner is the accused and opp. parties are complainants in 1 C. C. case No. 70 of 2004 pending before the Court below. As per the complaint petition on 1-11-1980 dr. V. Chancha Rao purchased a parcel of land situated in village Ogalpara (hereinafter referred to as 'case land') from one prafulla Charan Samantray vide registered sale deed No. 1684 for a consideration of rs. 15,000/- and possessed the same. After his death on 11-6-1997 the complainant-opp. parties 1 to 5 being his legal heirs stepped to his shoes. Since all these five complainants stay at U. S. A. and the case land situates far away from their place of stay, they wanted to dispose of the same. Complainant-opp. Party No. 1, the wife of late Dr. V. Chancha Rao registered a general power of attorney, bearing No. 10/91 in favour of D. Kesab Rao, Complainant-opp. Party No. 6, before the Sub-Registrar, dwaraka Nagar, Visakapatnam on 18-4-1991. Complainant-opp. Parties 2 to 5 also executed a general power of attorney in favour of complainant-opposite party No. 6 before a Notary Public of U. S. A. Thereafter, when Complainant-opp. Party No. 6 wanted to negotiate with some prospective purchasers for sale of the case land, accused-petitioner approached him and said that Dr. V. Chancha Rao, the husband of Complainant-opp. Party No. 1 and father of Complainant-opp. Parties 2 to 5 was still alive and showed him a general power of attorney bearing No. 304 dated 30-7-2001 showing as if executed by Dr. Chancha Rao before the Sub-Registrar, Berhampur (Rural) in his favour. As per the complaint petition Dr. V. Chancha Rao expired on 11-6-1998 and his dead body was cremated in presence of Complainant-opp. Party No. 6 and others. On verification in the office of the Sub-Registrar, Berhampur (Rural), it was found that a general power of attorney was registered in favour of accused-opp. Party No. 1 by someone impersonating dr. V. Chancha Rao and forging his signature. Accused nos. 2 and 3 were made witnesses in the said forged deed. So, the complainant-opp. Party No. 6 and others. On verification in the office of the Sub-Registrar, Berhampur (Rural), it was found that a general power of attorney was registered in favour of accused-opp. Party No. 1 by someone impersonating dr. V. Chancha Rao and forging his signature. Accused nos. 2 and 3 were made witnesses in the said forged deed. So, the complainant-opp. party No. 6 on behalf of complainant-opp. Parties 2 to 5 filed the aforesaid complaint case before the S. D. J. M. , berhampur against all the three accused persons including the petitioner on the allegation that they committed offence under sections 147/420/465/467/468/471 506/34 I. P. C. read with section 82 of Indian Registration Act. After taking initial statement of complainant-opp. Party No. 6, the learned s. D. J. M. , took cognizance of the offence under Sections 467/468/471 I. P. C. read with section 82 of Indian Registration Act. Being aggrieved with the said order, the petitioner has filed this CRLMC with the prayer as mentioned earlier. ( 3 ) AT the outset learned counsel for the petitioner submitted that on the complaint of a power of attorney holder, a Magistrate cannot take cognizance of any offence. To fortify his submission he relied upon the decision in Jimmy Jahangir Madan v. Bolly cariyappa Hindley (deceased by L. Rs.) AIR 2005 SC 48 : (2005 Cri LJ 112 ). He further submitted that as required under Section 195 (l) (b) (ii) of Cr. P. C. no cognizance can be taken under Section 471 of IPC except on a complaint in writing by the Court where the forged document was fraudulently or dishonestly used as genuine. In support of his submission he relied on the decision in sachida Nand Singh v. State of Bihar, (1998)14 OCR 312 : (1998 Cri LJ 1565 ). On the other hand learned counsel for opp. parties 1 to 6 and learned Addl. Standing Counsel appearing on behalf of the opp. Party No. 7 (State of Orissa) submitted that the trial court has rightly taken cognizance of the aforesaid offences against the petitioner and the other two co-accused persons. ( 4 ) "complaint" as defined under Section 2 (d) of the Code of Criminal Procedure reads as follows :-"2. Standing Counsel appearing on behalf of the opp. Party No. 7 (State of Orissa) submitted that the trial court has rightly taken cognizance of the aforesaid offences against the petitioner and the other two co-accused persons. ( 4 ) "complaint" as defined under Section 2 (d) of the Code of Criminal Procedure reads as follows :-"2. Definitions.- In this Code, unless the context otherwise requires,-xx xx xx xx xx (d) "complaint" means any allegation made, orally or in writing to a Magistrate with a view to his taking action under this code, that some person, whether known or unknown, has committed an offence, but does not include a police report;"there is nothing in the section to show that the party who is affected by wrong action of the accused can only file a complaint petition and none else. Any person having knowledge of the commission of offence can make a complaint, even though he is not personally injured or affected by the offence. As such there is no bar for a power of attorney holder of the complainant to file a complaint in writing before a competent Court. In the decision Jimmy Jahangir Madan, (2005 Cri LJ 112) (supra) cited on behalf of the petitioner, one Mrs. Bolly Cariyappa hindley filed two complaints for prosecution of Jimmy Jahangir Madan under Section 138 of Negotiable Instruments Act in which cognizance was taken and the accused was summoned. During trial the complainant died leaving behind a son and a daughter as legal heirs. The son and daughter executed a general power of attorney in favour of Mr. John Curtis and Mrs. Annie Cariyappa respectively. These two general power of attorney holders filed application under Section 302 of Cr. P. C. in the aforesaid cases before the trial Court to permit them to continue the prosecution therein. In this context the apex Court held that the legal heirs of the deceased complainant ought to have filed the petition. Since they neither filed a petition to continue the prosecution nor sought for permission from the competent court to allow them to continue the prosecution through their power of attorney holders it was held that power of attorney holders could not continue the prosecution. The fact in the said decision being quite distinguishable from the fact of the case at hand the said decision cannot be applicable to it. The fact in the said decision being quite distinguishable from the fact of the case at hand the said decision cannot be applicable to it. So, the first submission of the learned counsel for the petitioner is not tenable. In reference to second submission of learned counsel for the petitioner it would be profitable to quote Section 195 (l (b) (ii) of cr. P. C. which reads as follows. "195. Prosecution for contempt of lawful authority of public servants, for offences against public justice and for offences relating to documents given in evidence ,- (1) No Court shall take cognizance- (a) xx xx xx xx xx xx (b) (i) xx xx xx xx xx xx (ii) Of any offence described in Section 463, or punishable under Section 471, Section 475 or section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or (iii) xx xx xx xx xx xx except on the complaint in writing of that court, or of some other Court to which that court is subordinate"the provision of this section gets attracted when an offence of the nature specified therein is committed in respect of a document produced or given in evidence in any court. In the decision 'sachida Nand Singh' (supra) relied on by the learned counsel for the petitioner, the apex Court of the land also held :"the bar contained in Section 195 (1) (b) (ii)of the Code is not applicable to a case where forgery of the document was committed before the document was produced in a Court. In the present case as per the complaint petition the alleged forged deed of power of attorney was not produced or given in evidence in any Court. As such the provision of the section quoted above cannot be attracted to the present case. Accordingly the second limb of submission of learned counsel for the petitioner cannot also be accepted. " ( 5 ) AT last learned counsel for the petitioner submitted that as per Section 83 (I)of the Indian Registration Act, a private person cannot file a complaint for prosecution under Section 82 of the said Act without sanction of the authorities mentioned therein. Section 83 (I) of the Indian Registration Act, reads as follows :-"83. Registering officer may commence prosecutions. Section 83 (I) of the Indian Registration Act, reads as follows :-"83. Registering officer may commence prosecutions. (1) A prosecution for any offence under this Act coming to the knowledge of a registering officer in his official capacity may be commenced by or with the permissions of the Inspector-General, the Registrar or the sub-Registrar, in whose territories, District or Sub-District, as the case may be, the offence has been committed. As per this provision where an offence under the Indian Registration Act comes to the knowledge of the Registering Officer in his official capacity, a prosecution may be commenced by or with permission of any of the officers mentioned in the Section. This provision is not applicable to cases in which offences are committed under the Act but the Registering Officer is not aware of the same in his official capacity. Even if the commission of such an offence comes to the knowledge of the Registering Officer in his official capacity, the section does not prohibit a private person from commencing the prosecution. So, a private person can initiate a proceeding for any offence under Section 82 of the Indian Registration Act, without the permission as envisaged in Section 83 of the said Act. Accordingly the submission of the learned counsel for the petitioner cannot be tenable in this regard. " ( 6 ) THEREFORE, under the above analysis of fact and law, the impugned order does not warrant to be interfered with under section 482 of Cr. P. C. and as such, the CRLMC stands dismissed. Petition dismissed.