MOIDEEN SHAH Vs. JOSEPH MATHEW

JUDGEMENT

(1.) The petitioner was the accused in a prosecution case under Section 138 of the Negotiable Instruments Act. He allegedly owed amounts to a person--I shall refer to him as 'the principal' To discharge that liability to the principal, the 4 petitioner allegedly issued a cheque to the respondent herein the power of attorney holder of the principal. The attorney, in his own name, initiated proceedings under Section 138 of the N.I. Act as he was the payee as per the cheque. He explained the issue of the cheque in his name by contending that he was the attorney of the principal and in proof of that produced the instrument of power of attorney. That instrument is attested by a Notary Public at Calcutta. That instrument of the power of attorney and the Notarial certificate are produced before me as Annexure-II. In the course of examination, the attorney asserted that he had never gone to Calcutta to obtain the instrument of power of attorney. The petitioner contended before the Trial Court, the Appellate Court and the Revisional Court that he had not committed the offence under Section 138 of the N.I. Act. That contention was not accepted by the Trial Court, the Appellate Court and the Revisional Court. The petitioner has now been found guilty, convicted and sentenced. The verdict of guilty, conviction and sentence have now become final. The Supreme Court has also not entertained the Special Leave Petition, it is submitted.

(2.) While the revision petition was pending, the petitioner filed an application before the learned Magistrate to initiate proceedings under Section 340 of the Cr.P.C. against the respondent/complainant. It was alleged that a false statement has been made by the (complainant on oath. He had asserted that he had not gone to Calcutta to execute the deed of power of attorney. But deed of power of attorney shows that a signature of the attorney bearing the date 5.1.2002 is there in the document. It was further seen that the Notary had attested the document on 5.1.2002 at Calcutta. The petitioner relied on the presumption available and contended that the respondent must have been present at Calcutta on 5.1.2002 and his assertion contra on oath before the learned Magistrate is false. Consequently, it was contended that proceedings for perjury must be initiated by the Court. The application was opposed. The learned Magistrate did not accept the said contention. An appeal was preferred. The learned Sessions Judge has dismissed the said appeal also now. In view of Section 341(2) of the Cr.P.C. no revision lies and that explains why the petitioner has come to this Court with this application under Section 482 of the Cr.P.C.

(3.) The learned Counsel for the petitioner submits that both the Courts grossly I erred in dismissing of the application and appeal under Sections 340 and 341 of the Cr.P.C. It must have been held by the learned Magistrate and the learned Sessions Judge that it is expedient in the interest of justice to proceed against the respondent for having committed perjury. Both Courts having not done so, failure of justice has resulted and this Court may invoke the powers under Section 482 of the Cr.P.C. to interfere with the concurrent findings of both Courts rendered in proceedings under Sections 340 and 341 of the Cr.P.C.