D NAMA SIVAIAH Vs. A TULSI REDDY

JUDGEMENT

(1.) In this petition the question that falls for determination relates to the interpretation and scope of section 476 (1) Cr, P. C: and arises under the following circumstances :- One A; Tulasi Reddy, an English knowing business woman of Macherla had taken a land of Ac: 23-25 cents in D. No. 862 of Mandadi Village of Gurazala Taluk, on 24-2-66 for a term of five years from the District Collector, Guntur for carrying on quarrying operations in the name and style of "Ellore Mining and Slabs Works" in partnership with one Kothamasu Venkateswarlu. On account of misunderstanding between them, she wanted to buy off her partner and in this connection became indebted to D. Namasivaiah as she had to borrow money from him to pay off her partner and had executed pronotes for the said purpose. Thereafter, she entered into an agreement with the said Namasiviah, whereby he was to become her partner if certain amounts due to him were not repaid to him by 4-9-56. As the amounts were not paid within the time stipulated, Namasivaiah became her partner. But on the intervention of mediators he agreed to walk out if the sums due to him to the tune of Rs.43,519/- were paid in the manner stipulated in the agreement There were also certain other stipulations with regard to the disposal of some property and the adjustment of the amounts for the debts duet It was further stipulated that in case of default of payment of the instalments as agreed upon, the agreement was to stand cancelled and the original partnership agreement was to be restored. On account of further disputes, Tulasi Reddy filed O.S.No. 104/59 in the Court of the District Munsiff, Gurazala against Namasivaiah for an injunction without reference to the said Namasivaiah having become a partner at any time and in that suit she also filed I. A. No. 496/69 for grant of interim injunction. In the course of the enquiry in that petition, the plaintiff-petitioner therein i. e., Tulasi Reddi filed and relied on a receipt Ex. A-5 said to have been given by the defendant for a sum of Rs. 15,000/-. This was filed during the course of arguments in that petition. Partly relying on that receipt the Court confirmed the interim injunction that was granted. During the pendency of that suit the plaintiff had also filed a criminal complaint taken on file as C. C. No. 215/60 on the file of the Munsif Magistrate against the defendant Namasiviah for an offence under section 392 I. P. C. with regard to the removal of the stone slabs connected with the quarry. In that enquiry, the receipt for Rs. 15,000/- filed by the plaintiff-petitioner in I. A. No. 496/59 was summoned as the accused had contended that what he gave was only a receipt for Rs. 5,000/- and not for Rs. 15,000/- as stated therein. It was sent to a Handwriting Expert and was found to be a forged document containing alterations making Rs: 5,000/-to appear as Rs. 15,000/- with an introduction of the additional words "by bank draft and ten thousands by cash only". The accused was subsequently acquitted and the appeal thereon was also dismissed. The suit O.S. No 104/59 was also dismissed for default; Thereafter Namasiviah the defendant in the suit filed in the Court of the District Munsif Gurazala, O. P. 27/63 under Section 476 (1) Cr.P.C. for the prosecution of the plaintiff for offences under Sec. 467 and 471 I. P. C. After enquiry the Court held that it is expedient in the interest of justice to file a complaint againt the respondent under section 195 (1) (c) Cr. P. C. by the Court in respect of offences under section 457 and 471 I.P.C. and directed a complaint being laid accordingly.

(2.) On appeal in C.M.A. No. 27/64 the subordinate Judge held that the forgery complained of is true, but the lower Court had no jurisdiction to complain against the respondent even assuming that she was guilty of the offences in question as the Court had accepted the truth of the receipt Ex. A-5 that was filed even though it was forged, and has passed an order relying thereon in I. A. 496/59 and it is not open to the Court to find on a separate application that the receipt was forged and the appellant was liable to be prosecuted for the two offences mentioned above. It also further held, relying on the judgment of the Full Bench in In re, Padmanabha Hebbara that the Court cannot lay a complaint if the commission of the offence has been discovered by a Court after judicial proceedings are terminated and that as in this case the suit O. S. 104/59 in which the petition I. A. 496/59 for temporary injunction was filed was dismissed for default and the proceedings had terminated, it cannot lay a complaint. Hence this petition.

(3.) Both the Courts have held that Prima facie the offence of forgery has been committed and the Magistrate had directed laying of a complaint for offences under Section 467 and 471 I.P.C. as per the provisions of Section 195 (1) (c) Cr. P. C. Section 195 Cr. P. C. bars laying of a complaint either by the individual or by the police in cases where the offences have been committed by a party to any proceeding in any court in respect of a document produced or given in evidence in such proceedings. Even though such an offence has been committed if the Court also cannot entertain an application with regard to it subsequent to the closure of the proceedings in the Court it would mean that the culprit can go scot free and the offence can go unpunished as neither the Court nor the party concerned or the police can take steps to prosecute the offender. This will give rise to an anomalous situation especially when such offences are committed in proceedings in Court and are intended to mislead the Court in the dispensation of justice. Moreover, the Full Bench Decision cited and relied on by the Subordinate Judge was of the year 1918 long prior to the amendment of the Code with regard to section 476 Cr. P; C. Before the amendment the Section reads as follows :-