Research › Search › Judgment

Madras High Court · body

2007 DIGILAW 1528 (MAD)

M. Sadasivam v. K. Duraisamy

2007-04-27

S.TAMILVANAN

body2007
Judgment : 1. Crl. O.P. No.3860 of 2006 has been preferred by the petitioner/A1. Crl. O.P.No. 5715 of 2006 has been preferred by the petitioners/ A2, A4 and A5. Both the petitions are arising out of the case in C.C.No.201 of 2005 on the file of the Judicial Magistrate, Paramathi. 2. It is not in dispute that the respondent in both the criminal original petitions is the maternal uncle of the petitioner in Crl. O.P. No. 3860 of 2006, who has been arrayed as A1 in the case. The second accused Ramamoorthy is the husband of the respondents younger sister. Accused No.3 and 4 are the attesters to an alleged Will, dated 21.1.1979 and A5 is the scribe of the Will. A2, being the beneficiary under the alleged Will, dated 21.1.1979 filed a suit in O.S.No.346 of 1996 before the Sub Court, Namakkal, praying for the relief of partition and separate possession against A1 and the respondent herein. The said suit was dismissed on merits on 7.3.2005. Aggrieved by the same, an appeal has been preferred before the District Court, Namakkal, which is still pending in A.S.No. 8 of 2005. The petitioner/A1, was arrayed as first defendant in the suit. In such circumstance, respondent has filed a private complaint under Section 200 Cr.P.C. before the District Munsif cum Judicial Magistrate, Paramathi, seeking prosecution against the petitioners in both the criminal original petitions, who were A1, A2, A4 and A5 on the file of the Judicial Magistrate, under Sections 120 B, 420, 465, 466, 467, 468, 471, 477 and 477-A I.P.C., alleging that the Will, dated 21.1.1979, said to have been executed by Karupanna Gounder is a forged and fabricated document. 3. According to the learned counsel for the petitioners, A3 and A4 have been examined as P.W.2 and P.W.3 in the aforesaid suit in O.S.No. 346 of 1996, which is not denied by the respondent. 4. It is not in dispute, that the suit filed by A2, as beneficiary under the Will in dispute, dated 21.1.1979, in O.S.No.346 of 1996 before the Sub Court, Namakkal, praying for relief of partition and separate possession, against A1 and the respondent herein, after the trial, was dismissed on merits on 7.3.2005. 4. It is not in dispute, that the suit filed by A2, as beneficiary under the Will in dispute, dated 21.1.1979, in O.S.No.346 of 1996 before the Sub Court, Namakkal, praying for relief of partition and separate possession, against A1 and the respondent herein, after the trial, was dismissed on merits on 7.3.2005. The respondent/complainant has not denied that A2 aggrieved by the judgment rendered by the Sub Court, has preferred an appeal, which is pending in A.S. No. 8 of 2005 on the file of the District Court, Namakkal. 5. According to the respondent, the alleged Will, dated 21.1.1979 is a forged document. Learned counsel appearing for the revision petitioners would contend that the criminal complaint preferred by the respondent herein is not maintainable, since the appeal is pending before the District Court. According to him, the subordinate Court held that the alleged will has not been proved by the complainant/A2 and there is no finding by the Court that it is the forged document. Aggrieved by the judgment, the complainant/A2 has also preferred an appeal, at this stage, the complaint given by the respondent before the District Munsif cum Judicial Magistrate, Ms. Paramathi is not sustainable in law. According to him, the private complaint filed under Section 200 of the Code of Criminal Procedure before the Magistrate is not legally maintainable in view of Section 195(1)(b) (ii) of the Code of Criminal Procedure. 6. N. Manokaran, learned counsel for the petitioners, in support of his contention cited the following decisions: 1.Surjit Singh v. Balbir Singh, 1996 SCC (Cri) 521 2.Gopalakrishana Menon v. D. Raja Reddy, AIR 1983 SC 1053 . 3.C. P. Kotwal v. Ali Ashad , 2003 Cri. L.J. 2885. 4.Pasumai Irrigation Ltd. v. Mansi Finance Ltd 2003 (2) CTC 270 . 5.M. Ravi v. Elumalai Chettiar , (2007) 1 MLJ (Crl) 207. 7. According to the learned counsel, private complaint can be entertained by the Court below, only when the complaint to police is either refused to be registered or after entertaining complaint police has referred the case as mistake of law or fact or undetachable case of civil nature and Magistrate cannot usurp jurisdiction of police by entertaining private complaint at the first instance, without prior complaint to police. 8. 8. This Court in the decision M. Ravi v. Elumalai Chettiar, (2007) 1 MLJ (Crl) 207, has held that under Section 195(b)(ii) of the Code of criminal Procedure, when an offence has been alleged to have been committed in respect of documents produced or given in a Court, no Court can take cognizance of the same, except on the complaint in writing of that Court. Hence, cognizance of the private complaint was held illegal and liable to be quashed. 9. In the decision Surjit Singh v. Balbir Singh, in 1996 SCC (Cri) 521, the Hon‘ble Supreme Court has held as follows : 10. It would thus be clear that for taking cognizance of an offence, the document, the foundation for forgery, if produced before the Court or given in evidence, the bar of taking cognizance under Section 195(1)(b) (ii) gets attracted and the criminal Court is prohibited from taking cognizance of offence unless a complaint in writing is filed as per the procedure prescribed under Section 340 of the Code by or on behalf of the Court. The object thereby is to preserve purity of the administration of justice and to allow the parties to adduce evidence in proof of certain documents without being compelled or intimidated to proceed with the judicial process. The bar of Section 195 is to take cognizance of the offences covered thereunder.” 10. In the decision Gopalakrishna Menon v. D. Raja Reddy , AIR 1983 SC 1052: (1983) 4 SCC 240 , the Hon‘ble Supreme Court has ruled that as per Section 195(1)(b)(ii) of the Code of Criminal Procedure, in the absence of a complaint by Court, the prosecution would not be maintainable. Consequently, the prosecution of the person who alleged to have produced the forged money receipt in civil Court for offence punishable under Sections 467 and 471 read with Section 34 on the basis of a private complaint, in the absence of a complaint from the appropriate civil Court where the alleged fraudulent money receipt has been produced, would not be sustainable because if the prosecutions allowed to continue serious prejudice would be caused to them and they would be called upon to face a trial which would not be sustainable. 11. 11. Learned counsel appearing for the petitioners would contend that the prosecution based on the private complaint is not tenable, in view of Section 195 of the Code of Criminal Procedure, since complaint has to be made before the presiding officer alone of that civil Court, where the documents was filed by the party. 12. Learned counsel for the respondent, in support of his contention cited the following decisions: 1.Iqbal Singh Marwah v. Meenaksh Marwah, (2005) 4 SCC 370 : (2005) MLJ (Crl) 579. 2. Indian Oil Corporation v. NEPC India Ltd. (2006) 4 CTC 60: (2007) 1 MLJ (Crl) 473. I am of the view that the above decisions cited by the learned counsel for the respondent are not applicable to the facts and circumstances of this case. 13. It is not in dispute that after dismissal of the suit filed by A2 in O.S.No. 346 of 1996 on the file of the Sub Court, Namakkal, he has preferred an appeal in A.S.No. 8 of 2005, before the District Court, Namakkal, which is still pending. Therefore, as contended by the learned counsel for the petitioners/accused, the finding of the trial Court with regard to the alleged will, dated 21.1.1979 has not reached its finality. 14. It is clear as per Section 195 of the Code of Criminal Procedure, that when the document, which is tendered in a Court of law, in a proceeding is alleged to have been forged, then no Court shall take cognizance of the offence alleged, except on the complaint in writing of the Judge or a Magistrate in whose Court such document has been produced, presented or tendered or the presiding office of the Court, whom the said Judge or Magistrate is administratively subordinate. 15. As held by the Hon‘ble Apex Court, in the decision Surjit Singh v. Balbir Singh, 1996 SCC (Cri) 521, the object of Section 195 is to protect persons from needless harassment by prosecution for private vendetta to preserve purity and unsullied administration of justice and to prevent the parties of the temptation to preempt the proceedings pending in the Court. 16. The suit in O.S.No. 396 of 1996 was disposed by Sub Court, Namakkal, and the appeal is pending before the District Court, Namakkal. 16. The suit in O.S.No. 396 of 1996 was disposed by Sub Court, Namakkal, and the appeal is pending before the District Court, Namakkal. The District Munsif cum Judicial Magistrate, Paramathi is neither the Court in which the alleged forged document was filed nor the Court administratively superior to the Court, where the document was filed. As per Section 195 and 340 of the Code of Criminal Procedure, there is a bar to take cognizance of private complaint in respect of offence covered under Section 195 of the Act. 17. It is clear form the facts that for taking cognizance of an offence, the document which was produced before the Court on the ground of forgery, there is a bar under Sections 195 (1)(b)(ii) and the Criminal Court is prohibited from taking cognizance of the offence, unless the complaint in writing is filed as per the procedure prescribed under Section 340 of the Code of Criminal Procedure by or on behalf of the Court. 18. Section 340 Cr. P.C. reads as follows: Procedure in cases mentioned in Section 195: When upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any as it thinks necessary. 319. In the light of the ruling of the Hon‘ble Apex Court referred above, with regard to Sections 195(1) (b)(ii) and 340 of the Code of Criminal Procedure, I am of the considered view that the impugned proceeding in C.C.NO. 201 of 2005 has been instituted before the District Munsif cum Judicial Magistrate, Paramathi without jurisdiction contrary to the provisions under Sections 195 and 340 of Cr.P.C. and therefore, in order to prevent abuse of process of Court and to meet the ends of justice, I find it reasonable to allow the petitions and to quash the impugned proceeding, pending before the Court below. 20. In the result, the Criminal Original Petitions are allowed and the impugned proceeding in C.C.NO. 20. In the result, the Criminal Original Petitions are allowed and the impugned proceeding in C.C.NO. 201 of 2005, on the file of the District Munsif cum Judicial Magistrate, Paramathi is quashed. Consequently connected Crl. M.Ps. are closed.