HARISHANKAR KAMARLAL VASHIYA Vs. KHAYALICHANDRA ROOPCHAND GOYAL

JUDGEMENT

(1.) THIS reference under Order XLVI, Rule 1, Civil Procedure Code (for short, the 'cpc'), is made by Civil Judge, Class I, Shivpuri, in Miscellaneous Judicial Case No. 1/1978, whereby the Court, on its own motion, entertained a doubt and after drawing up a statement of facts of the case, has referred the following three points for decision of this Court :

(2.) BEFORE dealing with the points, few facts need be mentioned : Khyali Chandra instituted a suit (No. 15-B of 1972) for recovery of money against Harishankar, basing his claim on a promissory note. This suit was dismissed on 21-11-1975, holding that the promissory note and the receipt (Exts. P-1 and P-2) were forged. While dismissing the suit, the Court did not pass any order for prosecution under Section 195 of the Code of Criminal Procedure, 1898 (for short, the 'cr. P. C. ' ). On 2-1-1978, Harishankar, defendant, made an application to the Court for prosecuting the plaintiff Khyalichandra and Geburam, by filing a complaint under Clause (b) of sub-section (1) of Section 340 of the Code of Criminal Procedure, 1973 (for short, the 'code of 1973' ). This application was registered as Miscellaneous Judicial Case No. 1/1978.

(3.) AFTER holding a preliminary inquiry, the Court passed an order for making a complaint in writing for their prosecution under Sections 193, 196, 468 and 471, Indian Penal Code, in the Court of a competent jurisdiction. Against this order, Khyalichandra filed a Criminal Appeal No. 85/1979, under Section 341 of the Code of 1973 and Geburam preferred a Criminal Revision (No. 38/1979) under, Section 379. Both the matters were heard by Additional Sessions Judge, Shivpuri, who vide a common order dated 12-3-1980, allowing the appeal and revision, remitted the case to the Court of Civil Judge, Class I, for further inquiry and then to initiate the action.